Oaths and Affirmations

Lord Desai made the solemn affirmation, and Lord Myners took the oath, and both signed an undertaking to abide by the Code of Conduct.

Deaths of Former Members
 - Announcement

Lord Fowler: My Lords, I regret to inform the House of the deaths of Viscount Montgomery of Alamein, on 8 January, and of Lord Chalfont, on 10 January. On behalf of the House, I extend our condolences to the noble Lords’ families and friends.

European Union (Withdrawal Agreement) Bill
 - Committee (2nd Day)

Relevant documents: 1st Report from the Delegated Powers Committee, 1st Report from the Constitution Committee

  
Clause 22: Powers corresponding to Section 21 involving devolved authorities

Amendment 18

Lord Thomas of Cwmgiedd: Moved by Lord Thomas of Cwmgiedd
18: Clause 22, page 26, line 28, at end insert—“( ) But regulations under this Part may not amend or repeal the Scotland Act 1998, the Government of Wales Act 2006 or the Northern Ireland Act 1998.”Member’s explanatory statementThis would ensure that regulations made under this Part may not make provision to amend the Scotland Act 1998, the Government of Wales Act 2006, and the Northern Ireland Act 1998 in line with restrictions under new paragraph 11G, Schedule 2 to the European Union (Withdrawal) Act 2018 (Clause 19).

Lord Thomas of Cwmgiedd: My Lords, yesterday, I explained the purpose of the amendments that we sought to make at that stage, and the first, second and fourth amendments in this group all underlie the same purpose; namely, to ensure that if changes are necessary to the devolution settlements, they are dealt with in a proper constitutional manner, and that when we are outside the EU, the spirit, as well as the letter, of the devolution settlements is followed and the Government at Westminster pay the greatest regard to those.
I should make it clear, as I did yesterday, that I approach this from the standpoint of Wales, in part because that is where, by and large, my experience comes from, and because the union and its continuation is so important to Wales. It is essential that this House, and, I hope, Her Majesty’s Government, give every encouragement to those in Wales who wish to see the union strengthened, and by close co-operation. It may seem that these devolution issues are not that important at this time, but they are. It is inevitable that the devolution schemes will have to be looked at in the light of our departure from the European Union.
I will deal with each of the three proposed amendments, the first of which seeks to amend Clause 22. I intend to say very little about this. It follows on from last night’s debate on the amendments to Clause 21 and the extent to which powers conferred in that clause are not subject to limitations. The same arguments apply to Clause 22. In light of the position that was left last night, I see no point in advancing the arguments to the same effect all over again.
On Clause 26 and Amendment 23, in a way, this amendment comes out of order, because it presupposes that the amendments suggested that would delete proposed new subsections 5A and 5B in the name of the noble Lord, Lord Pannick, and other noble Lords, will not proceed. I will make some observations in due course in support of the objectives of the clause, but not on the manner in which those objectives are sought to be carried out. I will make those observations when we come to that amendment. This amendment addresses a much simpler issue: the importance of giving due regard to the views of the devolved Administrations in Wales, Scotland and—now that it is again in place—Northern Ireland, in formulating any draft regulations of the kind envisaged in the clause, both as to the courts that are to be entitled to depart from previous decisions and the tests that are to be applied.
The clause rightly provides for prior consultation with the judiciary if Ministers decide to proceed in this way. Although Wales’s judiciary is linked with that of England at present, I ought to declare that I presided over a commission appointed by the Welsh Government that examined the future of the legal system in Wales, and in particular, the possible establishment in due course—long outside the scope of the time of this Bill, of course—of a separate judiciary in Wales. The clause also provides for other persons to be consulted but does not list them. Neither Welsh, nor Scottish nor Northern Ireland Ministers are included in the list  of consultees. However, bearing in mind that retained EU case law is comprehensive in its definition, and that both the devolved legislatures and the devolved Governments have made legislation and acted on the basis of current law within the devolved fields, it seems obvious that they should be consulted if there is to be a change in the scope of the courts and a new test is to be laid down. They are vitally affected by it, and they should not be left out. The amendment is simple, asking that the role of the devolved Assemblies and Administrations be recognised. I understand that when this clause first appeared in the Bill, there had been no prior discussion with Welsh Ministers about this issue. I hope that the Government will look at it and give the closest possible attention to this amendment.
On Clause 38 and Amendment 45, as the report of the Constitution Committee states in welcoming this clause’s recognising the sovereignty of Parliament, the clause has no legal effect. It may therefore be surprising that I wish to take up time on a clause that has no legal effect. However, the Explanatory Memorandum also makes it clear that there is no material difference to the position of Parliament. Yet I agree that there are circumstances in which it is useful to remind people of the basics of our constitution, and this is no exception.
However, this amendment has been tabled because if there is to be such a reminder—the clause can have no purpose other than that—it should be recognised that since 1998, there has been a significant change to the constitution and in particular to the devolved schemes of administration. In failing to refer to the Sewel convention, which provides that Parliament will not normally legislate without the agreement of the National Assembly, the Scottish Parliament and the Government of Northern Ireland in relation to devolved matters, the clause does not put in place the correct balance of our constitution as it now moves forward. The amendment has been tabled to provide such a reference. It would ensure that for the future—as I hope would be the case in any event—the importance of the devolution settlement is critical to how the union is preserved as we go forward to our life outside the European Union. I beg to move.

Lord Howarth of Newport: My Lords, the noble and learned Lord has made an obviously reasonable and appropriate case for the propriety of the Government consulting with Ministers in the devolved Assemblies. That is not only good politics, it is good manners, and I hope that the noble and learned Lord who will be replying on behalf of the Government will readily accept that that is appropriate. I hope, therefore, that he will be willing to accept Amendment 23.
Amendment 45 is an amendment to a clause that is in any case otiose, so I do not think it is necessary for the Government to accept it, but again I hope that the Minister will affirm that of course the Government will want to follow the usual conventions and established procedures for legislative consent.

Baroness Finlay of Llandaff: My Lords, I wish to speak to three of the amendments in this group. Yesterday I spoke in support of Amendment 15, and those remarks are relevant to Amendment 18 so I will not repeat them. It is important to ensure that our concerns about the Bill are recognised. One is that, as currently written, the Bill can be interpreted as not respecting the union, which becomes extremely important constitutionally.
Amendment 23 relates to Clause 26 and the potential role of the courts, other than the Supreme Court, in the future. The difficulty arises in having due regard  to the devolved Administrations, as my noble and learned friend Lord Thomas of Cwmgiedd has outlined. Legislation that has already been passed by the Senedd, the Welsh Assembly Government, reflects European rulings. If those rulings are changed in the future, the  Assembly will have to address the changes. The difficulty, of course, is that if it has not been consulted on all the changes to the way appeals can be made, it could find itself in an extremely difficult position.
This amendment, like the others that we have tabled, is therefore designed to prevent avoidable problems emerging in the future. I cannot see that anything in our amendments would undermine the Government’s ability to move forward with their withdrawal Bill, but they would make sure that the legislative powers already held by the Senedd and the Welsh Government are respected.
Our amendment to Clause 38 is necessary because, as written, it fails to refer to the Sewel convention and therefore risks undermining the devolution settlements. If the Government do not wish to accept the amendment, one could suggest another way forward by deleting the entire clause, although I suspect that they are less minded to do that than to insert something short to respect the devolved settlements.
I also signal my support for Amendment 29 in the group, because again it aims to safeguard the devolution settlements from unilateral amendment by Ministers of the Crown. Although the conduct of international negotiations is a reserved matter, which everyone respects, the amendment would ensure that the impact on the devolution settlements are recognised and would give the devolved institutions the responsibility to make arrangements to implement international agreements as they go forward.
Essentially, we are asking to be consulted and to be kept in the loop. We are not asking for a veto, but our amendments ask for the devolution settlement to be respected, as it works at the moment with an intact union.

Lord Wigley: My Lords, my name is also attached to Amendments 18, 23 and 45. I am very pleased to support the points made by the noble and learned Lord, Lord Thomas of Cwmgiedd, and the noble Baroness, Lady Finlay.
The issues at question are issues of trust between the devolved Governments and the Government of the United Kingdom. Nobody is arguing that the devolved Governments have power over international treaties—of course they do not; they are reserved powers. None the less, what will be undertaken in those treaties will almost certainly have a very direct effect on matters that are devolved, some of them fully, to the National Assembly for Wales, and likewise to Scotland and Northern Ireland in slightly different ways.
To that extent, there have been occasions when the UK Government has been well represented in negotiations in Brussels by Ministers from the Government of Wales. It is perfectly right that they should be there on matters such as the sheepmeat regime or when questions of smaller languages are debated. When such matters arise, as is likely, in the context of any ongoing treaties or new treaties that will emerge, it is vital that the confidence of the Welsh Government and the National Assembly, and likewise that of Scotland and Northern Ireland, is taken fully into account.
The real danger is that things happen by default. The UK Government, with all the good will in the world, might think that issues do not arise without having talked about them. There needs to be some system to avoid unnecessary tension and rows between the various Governments within the United Kingdom.
I did not participate in the debate last night, but I read with considerable interest the comments made by the noble Lord, Lord Duncan of Springbank. He said:
“This debate has taken a turn that I had not anticipated—the notion that a power is now being granted to the Government to undo that which has been set before: if you like, the magisterium of the law which sets up the elements of Northern Ireland, Scotland and Wales. That is not the purpose of this rule.”
He goes on to say that he would be happy to make a note available
“to all noble Lords who are interested in this, so they can see where we believe this power will be required”.—[Official Report, 14/1/20; col. 639.]
The point is that if the noble Lord, Lord Duncan, has recognised that there is a need for greater clarification than is provided in the Bill, surely with the Bill still going to Parliament there is an opportunity to table amendments, such as the ones proposed in this group, to safeguard the position. It is not enough to have a sentence in Hansard. That obviously helps to clarify the position, but there needs to be something more cast-iron than that.
This is not a party-political issue, it is a matter of getting means of sensible co-operation into the Bill. If the Government cannot accept the amendments now, I very much hope that between now and Report they will consider these issues and try to bring in some form of wording that gives an assurance in the Bill along the lines that the noble Lord, Lord Duncan, suggested last night.

Baroness Randerson: My Lords, these amendments are designed to cement the established position of the devolved Administrations in the new situation in which we will find ourselves.
Amendment 18 to Clause 22 relates to any amendment to the statutes establishing devolution. They can be amended by a Section 109 Order in Council as long as the devolved Administrations agree but, as the clause stands, it leads to a suspicion that the Government could take the power to change devolution settlements without the agreement of, for instance, the National Assembly of Wales. We need the Government to make it clear one way or the other that they do not intend to do this.
Amendment 23 to Clause 26 simply adds devolved Ministers to the list of those to be consulted before the Government bring forward regulations referred to in that clause. Amendment 45 to Clause 38 relates to the Sewel convention. It simply inserts the well-established principle that Parliament will not normally legislate on devolved matters without legislative consent from the National Assembly for Wales.
I want to spend a little longer on Amendment 29, which puts the Joint Ministerial Committee on  EU Negotiations on a statutory footing and requires representatives of devolved Administrations to be briefed regularly on future relationship negotiations. The history  of the JMC as a whole has been chequered, to say the least. I have been privileged to see it from both sides: from the Welsh perspective as a Minister between 2000 and 2003 in a coalition in the National Assembly, and from 2011 to 2015 when I was a Minister in the Wales Office here.
In the early years, 2000 to 2003, I would describe the JMC as having been part of an old boys’ network. Labour was in power, in government, both here and in Cardiff, where it led the coalition. There was a dangerous lack of formality about the business we did. It was very good humoured but it did not have structure and was slightly erratic. It at least met regularly, if not frequently, but its behaviour was erratic. From 2010, I would characterise relationships as at the other end  of the spectrum, with the coalition Government— the Liberal Democrats and Conservatives—here, the  SNP in Scotland and Labour in Wales, as well as the complexity of Northern Ireland. I would say it was more of an armed standoff in those years. It provided an opportunity to have a well-scripted, very formal row with each other, with people coming out on to the steps of Downing Street to tell the world what they had said on their side of the argument. As a result, not surprisingly, it did not meet that frequently. Having observed the JMC in recent times, it does not seem to have got much better.
The devolved Administrations have drawn a lot of their strength and confidence from their vital EU links, which affect so much of the devolved work that is taken in those countries. Those links are now to be severed. As a Welsh Minister in the early years of this century, for instance, I represented the combined Governments of the UK at a European Council of Ministers; the noble Lord, Lord Wigley, referred to that kind of situation in his speech. I presented the agreed joint position of those Governments. It has given the devolved Administrations status and strength and is a very important part of their overall situation.
As we leave the EU, it is doubly important that the role of the devolved Administrations is fully recognised and enshrined in law, as this amendment attempts to do because it refers to the frequency of meetings, as well as to the establishment of the principle. As we go forward, it is vital that the devolved Administrations have the right to know the Government’s intentions which will affect them and their work. My experience of government here is that the relevance and importance of an issue to the devolved Administrations are very often overlooked. A Minister here is effectively a Minister for England. It is often forgotten that certain decisions have a real impact on Scotland and Wales.
I urge the Minister to accept these amendments. If that is not possible at the moment, I would urge him to bring back something that will reassure the devolved Administrations in these respects.

Lord Griffiths of Burry Port: My Lords, your Lordships are being spared a long speech from me simply because the noble Baroness, Lady Randerson, has made it for me.
I want to focus on Amendment 29. When we were debating the first European Union (Withdrawal Agreement) Bill, the irregularity and lack of efficiency of the JMC was referred to again and again. We identified exempted items from the provisions that would need to be set within a framework in order to try to establish an internal market for our country. We identified that, subsequent to the passing of that piece of legislation, the JMC would need to perform better to guarantee that what we were asking for would come to pass. That has not happened.
Amendment 29 seeks to tighten up on a resolution we made then and which we have had the chance to monitor since. If the proposals before us go through, a statutory basis, a serious performance and an impact assessement will be needed if we are to have the trusting relationship between the Administrations in these islands which will guarantee that the desires of the Government are implemented in an appropriate way. This is the shortened version of my speech. I know that your Lordships are rather sad at not getting it in full.

Lord Murphy of Torfaen: My Lords, I endorse the remarks of my noble friend Lord Griffiths and the noble Baroness, Lady Randerson, on Amendment 29. Your Lordships will recall that it is nearly 23 years since the people of Wales and Scotland voted for devolution. It is almost 22 years since the people of Northern Ireland voted for the Good Friday agreement and the establishment of devolution there. Happily, last week we saw the restoration of the institutions of government and democracy in Northern Ireland.
The political landscape of our country has changed tremendously during the past two decades. Having been the Secretary of State for Northern Ireland and for Wales, I am not convinced that Governments of either persuasion—nor the coalition— understood, in the course of those 20 years, what devolution was all about. Certainly, the relationships between the United Kingdom Government and those in Belfast, Cardiff and Edinburgh could have been better. I am one of those old boys to whom the noble Baroness, Lady Randerson, referred. Back in 2003, we had Labour Governments in Scotland, Wales and England. It was a bit cosy, inevitably. Things changed after that. We never had a Labour Government, of course, in Northern Ireland.
The Joint Ministerial Committee, for which I held Cabinet responsibility from 2007 onwards, never really worked. It was a great idea, bringing together Ministers from all the different Administrations but it did not work as it should have done. It did not meet as frequently as it should have done. I am not convinced that even under the new designation of Joint Ministerial Committee on EU Negotiations it has been all that successful, but it has been a bit better than previous incarnations. Now is the chance because our constitution has changed dramatically, not just because of devolution but because of what we are debating today.
Our departure from the European Union and all that involves in constitutional matters has to be looked at in the context of devolution as well. I hope that the  Minister will look very carefully at Clause 29 in particular and put when and how JMCs meet on a proper statutory footing. If JMCs do not work then the  trust and the confidence between the three devolved Administrations—one now very new—and the United Kingdom Government will evaporate. A number of noble Lords, including the noble and learned Lord, Lord Thomas, have made the point that unless we get the devolution settlement post Brexit right, it will threaten the union. The Government talk about the precious union all the time but it can be threatened if we do not take the devolved Administrations seriously in their role within the United Kingdom. If this does not work then the movement for independence in Scotland will get even stronger and movement towards a united Ireland might actually happen in Northern Ireland. I do not want any of those things to happen. I am a unionist with a small “u”. The best way to prevent that and to restore strength in the union is to ensure that we respect the devolution settlement, and these amendments do precisely that.

Lord Wallace of Tankerness: My Lords, I bring a Scottish voice in support of the arguments that have been advanced in the amendments from the noble and learned Lord, Lord Thomas of Cwmgiedd, and by other noble Lords who have spoken. These are important points, not only as the noble Lord, Lord Murphy, has just said, for maintenance of the union but also for many practical reasons. As the noble Baroness, Lady Finlay, said, no one disputes that the negotiation of an international treaty is a matter devolved to the United Kingdom Government. However, we have to recognise that much of the subject matter of many of these agreements will fall to the devolved Administrations to implement; it will be in areas of devolved competence. Therefore, it is important that there be proper engagement with the devolved Administrations in reaching these agreements, not only to ensure a community of interest within these islands but to give those with whom we are negotiating some reassurance that what they are negotiating will be implemented properly by the various devolved Administrations. If the people from the devolved Administrations are not present, something may be missing in the reassurances they are seeking.
In paragraph 114 of the report published yesterday by the Constitution Committee—of which I am a member—the committee reiterated what it said in its report last year on the parliamentary scrutiny of treaties:
“As part of its treaty-making after the UK leaves the European Union, the UK Government must engage effectively with the devolved institutions on treaties that involve areas of devolved competence … The UK Government will need to consult the devolved governments about their interests when opening negotiations, not just to respect the competences of those governments but also in acknowledgement of the important role devolved administrations may play in the implementation of new international obligations”.
In paragraph 115, the Constitution Committee recommends that
“the Government set out before the Bill’s report stage what its process for consultation and engagement with Parliament and with the devolved authorities will be in respect of the future relationship negotiations with the European Union”.
Amendment 29 goes further than that and wants to put it in the Bill; that is probably worth while.
Some noble Lords will recall that, when the Joint Ministerial Committee on EU Negotiations was established—I think, in the autumn of 2016—great commitments were made about the intention of the United Kingdom Government to engage at every step of the way in the negotiations to get a withdrawal agreement. Yet we know that, for many months, that Joint Ministerial Committee never even met. This is not the place to go into why it did not meet, but good intentions were not delivered on. We know that there were good intentions. In replying to the debate on the gracious Speech last Wednesday, the noble Baroness, Lady Williams of Trafford, said the following in response to a similar point that I and the noble Lord, Lord Kerr of Kinlochard, made then:
“the noble Lord, Lord Kerr, and the noble and learned Lord, Lord Wallace of Tankerness, asked about the representation of the devolved Administrations in negotiations on our future relationship. We recognise the need for their close involvement  in negotiations on our future relationship with the EU in order  to deliver a satisfactory outcome”.—[Official Report, 8/1/20;  col. 289.]
That was a statement of intent with which I could have no dispute, but we want more: we want how it will work in practice to be fleshed out. Given that the Joint Committee on EU Negotiations has not had a happy track record—it improved as time went on—many of us would feel more reassured if it was on the face of the Bill.

Lord Hamilton of Epsom: Is it not difficult to legislate for a committee to meet more often when it does not meet often enough?

Lord Wallace of Tankerness: My Lords, the amendment would establish that it should meet, and some timescales are set down. My concern relates to good intentions. No one disputes the good intentions for the Joint Ministerial Committee on EU Negotiations when established, but they were not carried through in practice. When the Minister comes to reply—I am not sure which Minister it will be—I am sure that we will be told of good intentions. We want to ensure that good intentions are delivered on.

Lord Kerr of Kinlochard: My Lords, I support Amendment 18. It would be very much in the Government’s interest to buy the amendment; it is quite hard to see what arguments could be made in public against their doing so.
I want to speak briefly to Amendment 29, to  which I have put my name. I have little to add to  what was said on the subject by the noble Baroness, Lady Randerson—she knows much more about it than me. I disagree only with one thing that I think she said, which was that the JMC had tended to meet regularly but not frequently. It might have been better to say that it met rather irregularly and very infrequently.
I am pleased to be able to say that my text for this debate comes from a point made yesterday by the noble Lord, Lord Howarth of Newport, when he stressed the need for courtesy and respect in the handling of the devolved Administrations. I strongly agree with the noble and learned Lord, Lord Wallace of Tankerness: things are getting very tense. I agree with the point  made earlier in discussion on this group of amendments that the devolution settlement is in clear and present danger. As we approach the minutiae of this Bill, we need to have the broader picture in mind. Fine words have been said and undertakings given by successive Front-Bench spokesmen, but they are not perceived in Cardiff or in Edinburgh to have been delivered on. That is why it is a good idea to write into statute the role of the JMC.
That for me is the second-best option. The best option would be to include representatives of the devolved Administrations in the negotiating teams that go to Brussels when the subject for discussion is going to touch on the competence of the devolved Administrations. The battle over common frameworks will be very much easier if the devolved Administrations believe they have been involved in the substance of the negotiations.
I recall that when we first joined the European Union, long before I was born, the first representatives to discuss, for example, fisheries in Brussels were John Silkin accompanied by Bruce Millen and Willie Ross. It was frequently the Scots who spoke on fisheries in the Council, although the legal establishment from London was sitting alongside them. I see no difficulty of principle, and I hope the Government do not, in including the representative devolved Administrations in the negotiating team.
Realistically, I do not believe that the Government will do that, and I have to admit that, as a former negotiator myself, I see the arguments for a very cohesive delegation. If we do not include the devolved Administrations directly in the negotiation, we have to have a really reliable and perceived-as-genuine system for informing them of our objectives in the negotiation, and tell them how we are getting on.
I would not die a death for the precise language of Amendment 29, but it writes into the Bill the fact that the JMC shall have a real job to do in scrutinising what the Government intend to do, advising them on how to do it and hearing how they are getting on. I therefore support the amendment.

Lord Morgan: Many distinguished Lords have spoken on the amendments, and I agree with them all, particularly the noble Lord, Lord Kerr, who is just leaving. It illustrates the lack of comprehension that there has been about how the British union state has changed, and how its pluralism has changed and become a more central feature.
I have had the great privilege of being on the Constitution Committee for the past four years, and this issue kept recurring. It is not a dispute or debate that has suddenly emerged; it came in Bill after Bill connected with constitutional relationships and with trade, yet somehow it was not resolved, mainly because the devolved Assemblies were being bypassed, often in a very hurtful way, leading to accusations of power grab and such statements.
The issues that have been mentioned include: reserved powers for the Welsh, Scottish and Northern Irish Governments, an issue that has come several times  and has not yet been dealt with properly; and the outcome of European legislation when it is transferred to this country, which has not been adequately dealt with either. We discussed this frequently on the Constitution Committee and wrote what I thought was a very important survey of intergovernmental relations. It seemed to have very little effect on ministerial thinking, or indeed on thinking about the nature and importance of devolution throughout our country.
In particular, there is the inadequacy of the  Joint Ministerial Council, which is mentioned in Amendment 29. The JMC is an almost hopeless body that has staggered on for two decades with no clear membership, no clear times for convening, and very little effect in real intergovernmental consultation, so I very much hope, as everybody does, that the Government will feel able to accept these proposals. Otherwise, the effect could be disastrous. Our union is in grave danger. People refer primarily to Scotland, but in my experience discontent in Wales is certainly much stronger than it was. It would be tragic if inattention and carelessness led to our leaving not one important union, but two.

Baroness Hayter of Kentish Town: My Lords, following not just yesterday’s speeches, but those today from the noble and learned Lord, Lord Thomas, my noble friends Lord Howarth, Lord Griffiths, Lord Murphy and Lord Morgan, the noble Baronesses, Lady Finlay and Lady Randerson, and the noble Lord, Lord Wigley, from Wales, as well as welcome additions to our West Country debate from the noble and learned Lord, Lord Wallace, and the noble Lord, Lord Kerr, the Government should have heard by now that the devolved authorities and people close to them feel somewhat squeezed out of the Government’s handling of our withdrawal from the EU and our future relationship with it, and of how the Government plan to discuss, or not, with those representatives as we go forward. That was probably not helped by the response of the noble Lord, Lord Duncan, last night.
We particularly welcome Amendments 18, 23 and 45, accepting in particular that, if we really must have an albeit non-legally enforceable statement about the sovereignty of Parliament in the Bill, it surely has to be accompanied by at least an equivalent nod to the devolution settlements and the Sewel convention to safeguard the union, as my noble friend Lord Murphy emphasised.
Looking towards the future, the noble and learned Lord, Lord Thomas of Cwmgiedd, said earlier this week that devolved Governments have an interest in all the negotiations. It is not simply the bits that can be identified as within their competence, because how agriculture pans out will absolutely affect the future of those countries. So will other parts of trade.
Our Amendment 29 in the name of my noble friend Lady Smith, as well as those of the noble Baroness, Lady Ritchie, and the noble Lords, Lord Bruce and Lord Kerr, seeks to achieve the input of the devolved authorities in the negotiations. As we have heard, it would place the Joint Ministerial Committee on EU Negotiations on a statutory footing—something that we have urged on the Government since its formation  in 2016. As my noble friend Lord Morgan reminded us, it has been pretty constantly discussed in the Constitution Committee. The amendment would ensure regular and frequent meetings of the JMC on EU Negotiations, which as we have heard, has at times been sidelined, especially when it was seen as a bit inconvenient. The noble Baroness, Lady Randerson, said that it had a “chequered” history. As my noble friend, Lord Griffiths, reminded us, it was not used in the way intended when it was set up. Importantly—we have not heard this voice this morning—the amendment would also require the JMC to focus on the very unique challenges facing Northern Ireland, including the aspects discussed in your Lordships’ House last night.
The amendment also covers the relationship between the JMC—the Joint Ministerial Committee—and the new and, as we have heard, highly important UK/EU Joint Committee. For example, the Secretary of State would have to brief British members of the Joint Committee to make sure they knew what the JMC was discussing, so that discussions held with the devolved authorities were fed in to the UK negotiators. This is vital. The British members of the Joint Committee, who would, of course, be Ministers, would have to give regard to the views of the Joint Ministerial Committee, which brings together the devolved authorities. They would also have to bear in mind the requirement of the Northern Ireland protocol to facilitate trade between Northern Ireland and Great Britain.
It is particularly important, as the noble and learned Lord, Lord Wallace of Tankerness, said, to realise that, in addition to a general interest in all these negotiations, much of the implementation will fall to the devolved authorities. As any of us who have been involved in developing policy know, if you do not discuss beforehand how it is going to be implemented, the chances are that the policy will not work.
Given the importance of ensuring that Brexit works for all parts of the UK, including the devolved nations, and given the concerns of the devolved Administrations that they are being excluded from vital talks—as we have heard, an amendment which we will come to later about the authority of courts has been tabled without any consultation with them—we look forward to a rather more positive response from the Minister when he replies. If the response is really positive, it might help the Welsh Assembly to consider whether it wants to give its legislative consent to this Bill.

Earl Howe: My Lords, I am grateful to  all noble Lords who have spoken to this group of amendments. The thread that binds together the amendments spoken to by the noble and learned  Lord and other noble Lords is their entirely legitimate interest in the Government’s level of engagement with the devolved Administrations and the protection of the devolution settlements. Having listened also to the noble Baroness, Lady Finlay, I fully understand that these amendments particularly reflect some of the concerns raised by colleagues in the Welsh Government. I hope I can reassure the Committee that these amendments are not necessary and the Government are fully committed to proper engagement with the devolved Administrations.
I turn first to Amendment 18. It is clear to me that the concern here is about the scope and breadth of the powers in this clause. I hope that I can address those concerns satisfactorily. I should add that the Government have also taken note of the report produced by our noble colleagues in the Delegated Powers and Regulatory Reform Committee in relation to the powers contained in this Bill.
I hope I am right in understanding that the noble and learned Lord is concerned that, without this amendment, the devolved authorities would be able to use the powers provided in Clause 22 to implement the protocol and, in doing so, would be able to amend the devolution statutes in those areas where they have such competence. However, I am afraid I have to resist this amendment because the restriction proposed by it risks preventing the United Kingdom fulfilling its international obligations, which stem from the Northern Ireland protocol. The noble and learned Lord will understand that we must be able to fulfil those obligations as a responsible player in the international system and as a close partner of our European neighbours. The particular problem with the amendment is that the proposed restriction would prevent the devolved authorities adopting certain decisions agreed between the UK and the EU in the Joint Committee, in relation to the operationalisation—if I may use such a word—of the protocol in areas of devolved competence. I must make it clear that that risk to the UK being able to fulfil its international obligations is unacceptable to the Government.
This amendment would have the effect of preventing amendments to the devolution statutes, even in situations where the devolved Administrations agreed to an exercise of the power in new paragraph 11M(2) jointly with the UK Government. This restriction could therefore hinder the introduction of UK-wide legislation that has been agreed on by all four nations of the United Kingdom. The Government could not allow such a situation.
It is important for me to make it clear that the Government are committed to not unduly restricting devolved competence as a result of our departure from the EU. Indeed, the limits of devolved competence in relation to the use of the power contained in proposed new paragraph 11(M) are clearly laid out in the remainder of the clause. No doubt the noble and learned Lord will tell me if I have not addressed his concerns satisfactorily, but I hope I have and that, on reflection, he will feel able to withdraw his amendment.
I turn now to Amendment 23, also in the name of the noble and learned Lord. This amendment would require a Minister of the UK Government to consult Ministers in the devolved Administrations before setting any regulations on which courts and tribunals may depart from retained EU case law. I listened carefully to the noble and learned Lord’s concerns and believe that I can offer him some reassurance.
The intention behind the clause is to give a power to make regulations to ensure that courts and tribunals across the UK are not inappropriately bound by retained EU case law after we have left the EU. It goes no further than that. We want to ensure that UK law is consistent and clear as we leave the EU legal order, but  equally, we do not want to fossilise the law. We will do this in a sensible way, and the differences of opinion within the House on this important matter demonstrate the importance of taking the time to do this carefully and correctly, and in consultation with others.
The clause requires that Ministers must consult the senior judiciary across the UK before making any regulations. That is crucial to ensure that any guidance given to the courts is developed in a sensible manner. However, engagement on these regulations is not limited to the senior members of the judiciary. The clause also requires consultation of
“such other persons as the Minister … considers appropriate.”
Clearly, there is much interest and expertise in the devolved Administrations. I assure the Committee that we will work closely with them on this and always welcome input to ensure that the regulations work across the UK and are implemented properly—how could we do otherwise? I hope that that assurance is welcomed by the noble and learned Lord and he will feel able not to press the amendment.
I am grateful to the noble Baroness, Lady Hayter, and the noble Lord, Lord Kerr, for speaking to Amendment 29. I am glad to have the opportunity to set out how we will engage the devolved Administrations after we leave the EU. I want to give noble Lords a firm assurance: the Government are fully committed to working closely with the devolved Administrations in our preparations for the next phase of negotiations with the EU.
There are several formations of the Joint Ministerial Committee, and the devolved Administrations have been regularly invited to attend the EU exit operations Cabinet committee. Departments also have a wide range of structures in place to enable discussion and engagement across a number of areas, such as the Department for Environment, Food and Rural Affairs inter-ministerial group, and the Department for Business, Energy and Industrial Strategy energy and climate change quad. There continues to be extensive significant work between the UK Government and the devolved Administrations on common frameworks in a range of policy areas.
The mechanisms for dialogue and full engagement are already well established. This amendment, I am afraid, would place unhelpful restrictions on conversations in all these forums, including the JMC, which is underpinned by the memorandum of understanding agreed between the Administrations of the UK, Scotland, Wales and Northern Ireland. Placing intergovernmental structures in statute would limit the capacity for discussion between all Governments to adapt to changes, particularly as circumstances evolve as we exit from the European Union.
Similarly, the amendment would also place obligations on the UK representatives to the Joint Committee. Since the arrangements for the Joint Committee are yet to be finalised with the EU, the amendment risks pre-empting those conversations and any decision on the future role of JMC Europe. I can only emphasise again that the Government fully recognise that the devolved Administrations have a strong interest in international policy-making, in so far as it impacts on matters that are devolved to each of them. The key here will be  continued close engagement. That engagement to date has—contrary to some noble Lords’ pronouncements —been extensive and we mean to continue engaging in exactly that way. Therefore, I hope that the noble Baroness, Lady Hayter—in so far as she is acting on behalf of her colleague, the noble Baroness, Lady Smith —will feel able not to press that amendment.
I turn last, but certainly not least, to Amendment 45 in the name of the noble and learned Lord, Lord Thomas. I think it is crucial here to look at the devolution settlements and the distinction between reserved and devolved competencies. The Sewel convention has led to consistent, UK-wide legislation in a range of areas where this is beneficial to all legislatures. It has also freed up time for devolved Administrations, enabling them to adopt UK-wide legislation when expedient. The convention was later written into the Scotland Act 1998 and the Government of Wales Act 2006, as the amendment states. However, this in no way limits parliamentary sovereignty. That fact is also explicit in the same devolution legislation. This position was reaffirmed by the Supreme Court in 2017, which was clear that Sewel is a political convention and not justiciable.
The amendment suggests that the convention applies to the entering into and ratification of international treaties, such as the future relationship agreement. It does not. The entering into and ratification of treaties is a reserved matter. As a matter of law, under the devolution settlements, international relations are the responsibility of the UK Government and Parliament, which includes MPs representing all parts of the UK. However, that is not to say that the devolved Administrations do not have a direct interest in our future relationship with the EU. As I have made abundantly clear, of course they do, and we will draw on their knowledge and expertise to secure an agreement that works for the whole of the UK. As always, we will seek legislative consent for any related primary legislation, including that required to implement the agreement, in areas that are in the competence of the devolved legislatures. I do not believe that this amendment will facilitate this process any further and I therefore urge the noble and learned Lord to withdraw it.

Lord Thomas of Cwmgiedd: I am grateful to all noble Lords, who have spoken in this debate. It has underlined how important it is for the future that we look carefully at these devolution issues and, in particular—what I regret to say is my experience as well—address a lack of understanding of the significance of devolution as we go forward.
Things have improved from the first occasion when I had to talk to an official about laying out legislation slightly more carefully so that Wales’s position was clear. He told us, “Yes, they did that in agriculture Bills for sheep, so they could easily do it in other Bills for Wales”. Things are better than that, but maybe not better enough.
It is very important that we put in place the necessary assurances—preferably in legislation, but also by way of structure. Words are fine, but deeds are better. I hope that, by raising these points, we will show that we can proceed with respect for our changed constitutional  position and that we in this House—and the Government as well—can do everything possible to reduce the risk of any split in the union. With regard to Wales, it is important that those who may wish to see the union not continue be given no further ammunition for their cause.
Three amendments stand in my name and in the names of other noble Lords. The issue in Amendment 18 arose last night in relation to Clause 21. At the conclusion of the debate, the Minister said he would produce a memorandum which would try to explain why restrictions could not be placed on these powers. I still do not understand why not. These are a perfectly proper means of changing the devolution settlement. If the Governments of Wales, Scotland and Northern Ireland are agreeable, the Section 109 route—to take the example of Wales—will do so. I did not address this issue at any length because the better course is to await the memorandum which the Minister has promised to see how we might go forward.
On Amendment 23, I am very grateful for the assurance given and will consider that further. As to Amendment 45, the clause has no legal effect, but what is really important is that we try to show the people of Wales, of Scotland and of Ireland that things have changed. When we go forward as a United Kingdom, that is something that everyone, particularly those in London, should bear fully in mind. However, I am very grateful for all the speeches that have been made and in the light of the debate, I beg leave to withdraw the amendment.
Amendment 18 withdrawn.
Clause 22 agreed.
Amendment 19 not moved.
Clause 23 agreed.
Amendment 20 not moved.
Clauses 24 and 25 agreed.

  
Clause 26: Interpretation of retained EU law and relevant separation agreement law

Amendment 21

Lord Beith: Moved by Lord Beith
21: Clause 26, page 30, line 13, leave out paragraph (b)Member’s explanatory statementThis amendment would remove the power of Ministers by delegated legislation to decide which courts and tribunals should have power to depart from judgments of the Court of Justice of the European Union and by reference to what test.

Lord Beith: My Lords, I am moving Amendment 21 on behalf of the noble Lord, Lord Pannick, who apologises that he is in court. I look forward to the contributions of the noble Lord, Lord Anderson of Ipswich, and the noble Baroness, Lady Taylor, who has chaired our Constitution Committee’s proceedings on this issue. As the committee has pointed out, the clause  that we are seeking to amend raises substantial constitutional concerns. I note that two former Lord Chief Justices are in the Chamber as well, so I look forward to an interesting debate.
After the end of the implementation period, the United Kingdom courts will still have to interpret a large body of retained European law. This necessarily will involve reference to the case law created by the Court of Justice of the European Union. This case law will continue to apply in our courts alongside any relevant domestic case law. However, in Section 6(5) of the European Union (Withdrawal) Act 2018—as noble Lords will remember all too well—we have already legislated to give the Supreme Court and the High Court of Justiciary in Scotland the power to depart from retained EU case law, having applied the same test as they would have applied if they were departing from their own case law. The Government now want to give themselves the power by regulations to extend that ability to depart from established case law to other unspecified courts—which could under the terms of the Bill be any court in the land—to specify the extent to which, or the circumstances in which, the court is not to be bound by EU case law, and to substitute the Government’s view of what test should be applied by the court after consultation for the Supreme Court’s existing and well-established test.
A lot of questions are prompted by this. Why do the Government want to do these things at all? If there is a good reason, why is provision not set out in the Bill as the previous scope and previous test were clearly set out in the 2018 Act? What courts do the Government intend to extend the power to? On Monday, the noble and learned Lord, Lord Keen of Elie, said that
“there is no intention to extend the divergence from retained EU case law to every court and tribunal in the United Kingdom … We recognise the uncertainty that would be a consequence of such a move”.—[Official Report, 13/1/20; cols. 554-5.]
So what courts are intended: the Court of Appeal, the High Court, the Court of Session, the sheriff court, the county court? How much uncertainty are Ministers willing to create and contemplate? What alternative test do they have in mind? The Minister needs to give us at least an illustration of what alternative test might be mandated on the courts through the proposed regulations.
I do not argue that ECJ case law should be kept alive longer than is necessary in our system, but the best way forward is surely for Parliament to update retained European law over time as domestic law and put in primary legislation any changes in the way courts deal with retained European law in the meantime. Leaving the clause in the Bill has serious constitutional and practical consequences. It allows the Executive to create and potentially circumscribe the discretion of the court, which, if it is going to be done, should be achieved by primary legislation. It can give Ministers a direct role through the making of the regulations in instructing courts to disregard the effects of CJEU case law. The extension of the disregard to more courts could lead to more potentially confusing and conflicting decisions on the effect of CJEU case law, giving rise to appeals which would have been unnecessary if the matter had been considered by the Supreme Court in the first place.
The existence of more courts which can depart from CJEU case law may encourage additional legislation. Lower courts are not bound by one another’s determinations, so differing conclusions could be reached on human rights protections arising from EU case law, a point stressed in representations I have received in support of the amendment from the Equality and Human Rights Commission.
The provisions in Clause 26 seem to have few friends. They replace a simple and straightforward process giving the Supreme Court and the High Court of Justiciary sole responsibility for departing from CJEU case law on the basis of a well-understood and well-established test.
I hope that the noble and learned Lord can give us a much clearer indication of what the Government are seeking to achieve and why they are doing it by regulation rather than including it in the Bill. I hope that we will hear a very full response from him. I beg to move.

Lord Anderson of Ipswich: My Lords, I declare an interest as a litigator over 30 years of European law issues for whom these paragraphs and the legal uncertainty they unleash bring the prospect of endless work and riches as yet undreamed of. None the less, I put my name to the amendments, which of course will do nothing to obstruct or delay the Brexit that will occur on 31 January.
At Second Reading, I described another clause of the Bill as “Henry VIII on steroids”, but even that description is hardly strong enough for new subsection (5A)(b). That would allow the Minister, by regulations, to decide the extent to which, and the circumstances in which, our courts are to consider themselves bound by the law of the land, whether in the form of retained EU case law or retained domestic case law that relates to it. If Parliament is asked to change retained EU law, we will debate it and no doubt find a way to do it. Taking back control of our laws is one of the principal points of Brexit and, for my part, I hope to play a constructive role in that process. But to stand by and see these law-changing powers given to Ministers is quite another matter.
European law, no less than our own, is contained to a significant extent in the judgments and interpretations of the courts—what in the domestic context we refer to as principles of common law. If Ministers were free to remove the binding force of principles that they did not like, they could selectively neuter the protections given by law to workers, consumers, disadvantaged groups and the environment. Such a power in the Executive to interfere with the law declared by the courts, including the courts of this country, has no precedent that I know of. It would also cause uncertainty with effect from now, because no one can predict which parts of retained EU law will be changed over the year ahead or how the structure of what remains will react when a load-bearing element is removed.
Alarming in a different way is new subsection (5A)(c), on which the noble Lord, Lord Beith, began his remarks. Courts could be licensed under this provision to make their own departures from retained EU case law on conditions that Ministers could specify. As Sir Bob  Neill explained in the Commons, that is a recipe for uncertainty, confusion and opportunistic litigation on a grand scale.
The Minister will, I anticipate, encourage us not to worry, because senior judges must be consulted. But consultation means only that. The Government have the whip hand. The complex ramifications will not be exposed by argument as they would be in court and, if deference to the judges’ views could ever have been assumed, it certainly could not be now. I suggest that there would be situations in which the judges will not even feel able to offer an opinion.
Imagine the scene. The Minister summons the judges and informs them of his proposal to instruct them that in accordance with the clear will of the people—or at any rate of the Government—they are no longer to be bound by the settled interpretation of the precautionary principle in environmental cases or the principle of indirect discrimination in employment law. The judges would no doubt come back with such comments as might occur to them on the timing, the procedural implications and so on. But since such instructions would be lawfully issued, if this clause passes into the Bill, and would implement clear government policy, these serving judges could not pass substantive comment without being dragged into the policy sphere, which, contrary to the views of some, they are extremely anxious to avoid.
Secondly, the Minister will point out, quite correctly, that the power in question will sunset when the transition period ends. However, it is the power to make regulations that will sunset, not the application of those regulations after the transition period. So that reassurance is illusory.
Thirdly, perhaps the noble and learned Lord, Lord Keen, who is as shrewd as he is principled, will tacitly accept the overbreadth of these provisions but hint at their restrained future use. In that case, I would invite him to come back with a version consistent with those restraints. We are reasonable people and if his only concern is a possible bottleneck in the Supreme Court other solutions could be devised and have indeed been suggested to him.
To leave this extraordinary clause unamended would be, I suggest, a dereliction of duty. I hope that amendment will come from the Government. However, when the time comes and in the last resort, as the noble Lord, Lord Butler, said on Monday,
“we should not be intimidated from fulfilling our constitutional role of scrutiny and amendment”.—[Official Report, 13/1/20; col. 490.]
That is particularly so, I would add, on an issue that was not put to vote in the Commons, that has been the subject of strong comment from the Constitution Committee, that in no way jeopardises Brexit but that threatens the independence and good order of the courts.

Baroness Taylor of Bolton: My Lords, members of the Constitution Committee are very concerned about this suggestion in the legislation. The case was outlined by the noble Lord, Lord Beith, who went into some detail, so I do not wish to repeat all that. I simply want to ask the Minister, first, whether it is the Government’s intention to use this new subsection (5A)(b), and, secondly, if they will not use it, why it is in the Bill. If they intend to use this provision, can the Minister please give us some examples of where that might be?

Lord Howarth of Newport: My Lords, I also serve on the Constitution Committee and share the concerns expressed by my noble friend Lady Taylor and the noble Lord, Lord Beith. The relationship between the Executive, the judiciary and the legislature is a matter of some current controversy. The Executive have been stunned by the judgment made in the Supreme Court in the autumn, and I suspect that in part we are seeing a somewhat petulant response to that circumstance.
At all events, what is proposed in this legislation is a gross intrusion by the Executive into the proper realm of the judiciary. The Executive complain that the judiciary has extended itself excessively into its role; we are now seeing a retaliation on a major scale. Whatever practical motivation otherwise that may have caused the Government to write new subsection (5A)(b) into this clause, it is a foolish initiative on the part of the Government.
This is territory in which the Government ought to walk delicately, like Agag. It sets an appalling precedent, and it intrudes into the proper role of Parliament, because it is not appropriate. Even if it were appropriate for Ministers to interfere at all in this realm of judicial discretion, it is not appropriate for Ministers to do  it by regulation. Such decisions ought to be made  by Parliament in primary law, ensuring that the sort  of very important principles which the noble Lord, Lord Anderson of Ipswich, has suggested might be interfered with by Ministers under the terms of this legislation cannot be dealt with in this kind of way.

Baroness Deech: My Lords, I am puzzled by some of the issues that have been raised by this amendment. First, only a year or two ago, the noble and learned Lord, Lord Neuberger, then president, called for Parliament to tell our judges clearly how rulings of the CJEU are to be dealt with after Brexit. Apparently our noble and learned friend did not see any difficulty about that.
Secondly, to tell courts that they are not bound by something does not mean that they will not follow it. If they are not bound, they may well still choose to follow it if they think it is good law. There are indeed many instances where the Court of Justice of the European Union has not produced good law: for example, over the secret nature of MEPs' expenses, on genetically modified crops and on diplomatic immunity. This is not surprising, because it is a court very unlike our own type of court. Its judges are nominated by sending countries for six years—they have only a six-year tenure. They have enormous salaries and expenses, and I am sure that they are reluctant to lose them after six years, and anxious to be renominated.
There are of course no dissenting judgments. Many of the so-called judges are not judges at all. They have been professors—obviously, I have great admiration for professors—and civil servants, with of course the exception of the British judge. So I am a little sceptical about this court. I think people sometimes confuse it with the European Court of Human Rights. We hear much talk that, if we depart from the rulings of the CJEU, our human rights will be affected. That is not the issue today.
I ask those who put forward this amendment what they mean, or envisage, by binding and not following, and why they think it would be better for citizens to  have to go all the way to to the Supreme Court, with all the delay and expense—and lots of nice jobs for lawyers—that will be involved if you can only get a diversion from EU law by going all the way to the Supreme Court.

Lord Brown of Eaton-under-Heywood: My Lords, although I am one of the few legal Cross-Benchers who has not been Lord Chief Justice, I too want to say a few words in support of these amendments.
I wonder whether my noble friend Lady Deech has recognised the precise area that we are concerned with here, which is retained EU law: that is, decisions of the European Court of Justice pre the end of the transition period, not decisions to come thereafter which can merely be taken account of and do not bind. So we are concerned with the actual decisions taken before we finally part ways.
Under our system, it is normally for Parliament, of course—and to a very limited extent for Ministers, by secondary legislation—to legislate: to declare what the law is, almost invariably for the future. Only rarely do we give law retrospective effect. But in 1966, as I am sure we all know, the practice statement in the House of Lords said for the first time that we could depart from what has otherwise been the sacrosanct principle of stare decisis—of precedent in the interests of certainty and finality—subject to a rigorous test. It is a rarely used power, now transferred to the Supreme Court and indeed, by a decision that I wrote in 2007, to the Privy Council. In certain limited circumstances, the courts can depart from their previous decisions.
The sort of consideration or test is whether the earlier ruling is now judged to have been plainly wrong, and how long it has stood. If it is recent, that is one thing, but if it has stood for a long time there may be many who have acted in reliance on it. Let us not forget that when the court exercises this power it does so by declaring what the position is and always has been. It therefore applies retrospectively and leads to cases where those affected by it, although they may run into time difficulties, may need leave to appeal, or to bring proceedings, out of time. They may then say, “That is now established as the law and therefore we would like to invoke it.”
In the ordinary way, we only use this power where the individual case leads to manifest injustice or is contrary to public policy, or where the established line of authority unduly restricts the development of the law. In a very interesting and powerful piece in the Spectator last week, one of the excellent contributors to the Policy Exchange, Professor Richard Ekins, quarrels even with Section 6(4) and (5) of the 2018 Act, which already provide in effect for the Supreme Court, and in certain circumstances the High Court of Justiciary in Scotland, to have the same powers to reverse EU-retained case law; in other words, not to follow what they would otherwise need to follow, the already decided ECJ decisions, in the same way as they can not follow existing domestic law.
Professor Ekins suggests that that
“would introduce unnecessary legal doubt and improperly empower the Court to make new law.”
I see that point, of course, although I would not deprive the Supreme Court of this power. However, it strongly reinforces what he already said in the article in support in effect of Amendment 21: that it would be absurd for some lesser body as yet unknown, and I rather suspect not quite thought out, to decide who should, at a lower level, be authorised by ministerial regulation to depart from retained EU case law. That would indeed be a recipe for chaos, confusion and uncertainty.
As to the other main point, Professor Ekins wants all the power to change EU case law to be either the power of the Minister to promote by way of primary legislation—which of us would quarrel with that; it is plainly the correct approach?—or for the Minister by secondary legislation. That is where the real problem lies. If the proposed change of legal direction from earlier rulings of the ECJ involves obvious fresh policy choices, such as the sort of things instanced by my noble friend Lord Anderson, it will affect some already established important legal principle and is plainly an issue for Parliament by primary legislation. Secondary legislation could be appropriate here only if it is demonstrably necessary either to work cogently with some clearly established new post-Brexit situation or something of that character.
That said, I share Professor Ekins’s objection to involving individual judicial officeholders, however senior and distinguished, in the process of ministerial law-making. This again chimes with what my noble friend Lord Anderson said. I support both the amendments. Let the Supreme Court, as under the 2018 Act, have this rare power that will be seldom exercised, but mostly it should be for primary legislation to depart from well-established legal principles.

Lord Judge: My Lords, like the noble and learned Lord, Lord Neuberger, I too would welcome some clarity in this field, but I do not think that clarity can be provided by Ministers creating regulations behind the scenes and then serving them up to the House of Commons, which has not rejected any ministerial regulation since 1979, or this House, which has rejected them on minimal occasions, and by doing so in 2015 apparently caused a constitutional crisis. The issue is very simple. Of course there should be clarity and of course it should be provided by Parliament. We will now be considering what is domestic law. We call it EU case law, but the whole point of the process that we are going through is that it will become British EU-retained law. It will be British law and no longer EU law. It is that which will be interfered with.
I could spend some time going through the doctrines of precedents. They are very clear and simple. I remind the House that they have provided a way of achieving legal certainty. You can conduct your affairs with a degree of legal certainty. You can conduct your business, conduct your tax affairs and deal with foreigners outside this country. They tend to want to come to this country because the law is certain and clear. Yet simultaneously, and it is one of the great glories of our system, we have common law that goes back to 1189 that has enabled the law to develop, flourish and adapt as and when it became appropriate and necessary to do so. The greatest tribute to the common law is that it carries the day in all English-speaking countries. It is  still used in India and Australia—adapted, of course, because that is one of its fundamental strengths, to conditions there.
I gave a lecture and talked to people who have suffered the horrendous problems of Bhopal, which not many of us will forget. There is a perfectly good legal principle—British, as it happens—called Rylands v Fletcher, which decided in Victorian times to create a new system. If you bring dangerous things on to your land, it is your job to keep them in, and if they get out, you are responsible. That was the common law working with absolute certainty to produce a new way of looking at the responsibilities of the landowner. So between them, the principles of legal certainty and the use of the common law enabled our law to develop.
Here, the noble and learned Lord the Minister, as the noble Lord, Lord Beith, reminded us, with his own personal experience, asserted on Monday by repeating that
“there is no intention on the part of the Government to extend the power to every court and tribunal in the land.”—[Official Report, 13/1/2020; col. 555.]
But that is the power that is being given by this legislation as it stands to a Minister. If that is not the Government’s intention, what on earth is the point of giving the power in the legislation to the Minister?
Where do we go? This permits the Minister to make regulations that would create jurisdiction in any court at any level to disapply retained EU case law, which is our law. Just think of the district judge sitting in, for example, Pontypool County Court, bound by all the decisions of all the courts above him or her by our own native law—Occupiers’ Liability Act, Unfair Contract Terms Act and even the Finance Act—who is then told, “Here is the EU case law. You are not bound by anyone’s decisions on that, so take a running jump at it.”
That in truth is what the poor judge will have to do. Think of his poor colleague in Penrith County Court, faced with a large organisation taking advantage of this new system by going to a small county court without the experience to respond to: “This bit of EU case law really troubles us. Your honour is not bound by it, so here are the reasons you should find for us.” To be fair, it could happen the other way around with a litigant who knows perfectly well that under case law he has no case, going to the same judge and saying, against a large business organisation, “They cannot rely on the case law any more, because you are not bound by it.” The same could happen in a tax tribunal or a VAT tribunal. All of this is quite unnecessary because, as the Minister has said, that is not the Government’s intention.
I would love to have a go at Henry VIII, whether he is filled with fat or with whatever drug to describe this condition today, but I am going to resist the temptation to do so, because I want the Government to realise that this is nothing more than a reasonable argument that needs to be addressed. All that is needed, without causing any delay to Brexit or creating a problem on 31 January, is for the Government to decide what arrangement should be put before Parliament in primary legislation to achieve the desired objective.
As an example, I did a bit of drafting last night so that they could say, “The Supreme Court and/or the Court of Appeal in England and Wales and the High Court of Justiciary in Scotland are not bound by retained EU case law”. Or the Government could say that those courts may depart from any retained EU case law if and when. It is not difficult, and I will offer myself to the Minister to sit down and talk it over with him if that would help. If Ministers are listening, perhaps that offer will be taken up. However, we have to address the principle, because the slightest incursion into judicial processes must be for Parliament, not for Ministers.

Lord Thomas of Cwmgiedd: Perhaps I may make some brief observations, in part in support of the underlying purpose of what the Government have said they want to do, but in total support of this amendment. As I understand the position, the Government want courts other than the Supreme Court or the High Court of Justiciary in Scotland to have power not to follow decisions of the CJEU on retained law. That is a purpose I support. In the course of the debate on the withdrawal Bill, in particular the Report stage in April 2018, I asked the Government to think again in relation to allowing the Court of Appeal in England and Wales, the Inner House in Scotland and the Court of Appeal in Northern Ireland to have this power.
I did so for two reasons. First, it would create a considerable bottleneck. Indeed, it could be said that the Supreme Court might be so busy that it would not have time to do anything else—a prospect which this Government might welcome. But that is not the point. The point is that we must look realistically at this issue, and there is much to be said for allowing the Courts of Appeal or the Inner House to be able to have the same power as the Supreme Court.
There is another reason. As I think experience has shown, certainly the experience of some judges who sit in the Supreme Court, it is extremely helpful to have a judgment of the lower court in those proceedings where issues that go straight to the Supreme Court sometimes turn out not to be quite so satisfactory. However, this is not a new point because it is one that I made some 20 months ago, and it really does seem to me that if the Government are proposing to go anywhere other than the Courts of Appeal or the Inner House, it will cause chaos. But if they intend to go only to the Courts of Appeal, this can be written into the Bill—it is very simple—and should be done now. I very much hope that that would be the way forward.
The second issue goes to the test. The noble and learned Lord, Lord Neuberger, and I both pointed out in the debates on the withdrawal Act that using the powers under the practice statement to look at decisions of the CJEU and to decide whether they should be followed was not the right way forward. First, the test was never devised in those circumstances. Secondly, and much more worryingly, it would give the Supreme Court, or any other court that could depart, a huge power without any clear guidance, so there would always be the risk that the court could be put in the position of being perceived to be entering into the political field in making the decision to reverse or not to reverse. Therefore, there is substantial merit in  putting a new test, so I support both of the underlying purposes. However, to allow a Minister to specify a test which the judges have to apply would be a power that any populist Government would love to have, but as far as I am aware, no populist Government, however powerful, have ever asked for this before. It runs entirely contrary to the rule of law and to the fundamental principle of the separation of powers.
It seems to me, therefore, that one of the points that arises is which of the courts can and should be dealt with now, and if there is to be a modification of the test, that needs to be debated. This may not be the right time to do so because, as was pointed out in the earlier debates, the way in which retained EU case law is approached must depend on whether the decision is made for close alignment with the EU and therefore the need to continue the case law, or whether a different way will be put forward. So it is difficult to set out the test now, but it should be done, and done only by Parliament. We cannot give Ministers the power to tell judges how to decide cases.

Lord Woolf: My Lords, if the noble and learned Lord, Lord Mackay, would like to speak first, I would welcome that.

Lord Mackay of Clashfern: I do not particularly wish to speak first, but in view of the noble and learned Lord’s invitation, I will make my brief contribution. Unlike the noble Lord, Lord Anderson of Ipswich, I have a fair amount of experience in this area of European law and the modification of existing judgments—I sat in the House of Lords when it set aside a previous judgment. It is extremely important that we consider the principle that has to lie behind this. The present situation is that EU retained law has been made part of the law of the United Kingdom unless and until it is modified by Parliament in due course. When passing the previous withdrawal Act, we placed a number of restrictions on that power for Ministers in various areas relating to human rights and so on.
From what I read in the newspapers as these things developed, my impression was that the Government were anxious that the power to modify or depart from EU judgments would be better given to a wider set of courts than the Supreme Court, and the High Court of Justiciary in Scotland on criminal matters, as had been done in the withdrawal Act. I can see that it may be part of overall policy that it should be rather wider than the present law would permit. However, it is important that whatever method is used, it is one that will prevail across the whole of the United Kingdom. Therefore, to give the power to do this to, for example, the Inner House of the Court of Session, would have the effect that it would apply in Scotland but not in England and Wales directly, nor in Northern Ireland. There would be a degree of difficulty in that. That is why, in my view, this power should be in the Supreme Court. As we all know, when the Supreme Court gives a judgment, it is a judgment for the whole of the United Kingdom. It is important to emphasise that the name of the court is the Supreme Court of the United Kingdom.
If it is desired to give the power to a wider section of the courts, the way to do so is to specify which courts they are. The example given by my noble and  learned friend is one possibility, but it is for the Government to decide how wide they wish to be. However, it is important that the courts should not have the power to ultimately decide; it should be required to refer the matter to the Supreme Court. The Supreme Court can modify the burden that that would involve by a lead process, leaving it free to dismiss a case where it was thought there was nothing in it. One possible line is for the lower court to give a judgment which might ultimately help the Supreme Court, but I do not know whether that would always be necessary. The important thing is that any court that has this power would have it only as a way of referring the matter to the Supreme Court.
I was thinking of putting forward an amendment to this effect, but I thought it probably better to leave it until we have had a chance to discuss it. I have reached the conclusion that, as a practical matter, if we in this House can persuade the Government to change, it is likely to be effective; whereas if we do not persuade the Government to change, it may not be effective, with results that we may not altogether approve of. My main effort in this is to try to persuade the Government that a system along the lines I have proposed would be perfectly acceptable and workable, and would embrace all the courts that it needs to embrace.

Lord Woolf: My Lords, I am grateful to the noble and learned Lord for preceding me because he is in a unique position to give advice to the House on this issue. I only intervene to add to what has already been said because I want to stress the importance of the issue. There is an old saying that hard cases can make bad law. This may be a hard situation for the Government but they are in danger of making very bad law indeed. Why they are in danger and why they would be wise to think very carefully again before they ask for this to be implemented is apparent from the careful steps that were taken back in 2005 when I was still one of the chief justices—to whom the noble and learned Lord, Lord Brown, referred—who are present before your Lordships.
At that time, changes were being made which went to the root of the constitution, and the courts were concerned that they could be severely damaging to our unwritten constitution. As a consequence, the then Lord Chancellor and I—then Lord Chief Justice—came together to make a concordat to try to deal with those difficulties. It was recognised that one of the underlying principles of our common law and constitution was the separation of powers, and what was being done in 2005—which affected the position of the Lord Chancellor in relation to the courts—was trespassing on the principles that had existed hitherto. The noble and learned Lord, Lord Mackay, was well aware of these principles when he was Lord Chancellor and a member of the Government. The role that the Lord Chancellor played at that time was to ensure that the important balance—which explained how we managed to continue without a written constitution—succeeded, which it did remarkably well.
As I see the situation, what my noble and learned friends and my noble friend Lord Anderson have been saying to your Lordships is that this proposes a change in our law that would undermine the proper observation  of the rule of law in a most critical way. I suggest that for this House to allow that to happen without protesting in the clearest way would be very undesirable indeed. I feel confident that if the Government look at this matter again and bear in mind the speeches made to this House today, they will see how it can be dealt with. However important Brexit is, it must not be allowed to create a precedent that could be followed hereafter, as has been suggested, which would damage our situation.
I hope we will always be able to continue in this country without a written constitution. However, if we let what is proposed go through with saying it should be amended, we will create a situation where that will not be possible. We should pause before doing so.

Baroness Jones of Moulsecoomb: My Lords, I have no legal training, unlike many of the eminent lawyers who have spoken this morning. I have occasionally found myself in court, but mainly as a litigant against the Met Police and the Government, although occasionally as a defendant, but I was obviously always innocent.
As I have no legal training, perhaps I can be seen as somebody who represents some of the majority of the people in the UK who have no legal training and who perhaps will not understand what is happening here today, because quite honestly it is an aberration and something that we all have to resist. I very much hope that this Government can see that they have a fight on their hands, because if this clause gives any insight into government thinking it is quite chilling and quite upsetting, as it is contrary to everything that Britain stands for.
Our overconfident Government want to completely redraw the checks and balances in our constitution so that Ministers can opt out of legal precedent at will. Ministers are seeking power to disapply EU case law as though their existing Henry VIII powers are not enough. No good justification has been given, and no sensible restrictions have been put in place so that these powers are used only when strictly necessary. This clause will create a wild west of legal uncertainty, where no one can really be sure what the words “contained in retained EU law” actually mean, until even the most basic issues are litigated on. It is a scorched earth policy and totally inappropriate for our legal system.
Of course, these absurd powers will also be particularly harmful for the environment and our natural world, since so much of our environmental legislation comes from the European Union. The UK Government have a terrible track record of getting into trouble with the European courts for things like our air pollution epidemic and the amount of raw sewage in our rivers. It is almost no wonder that the Government would like this magic wand to take away EU case law. But what is convenient for our Government would be disastrous for our environment, which is why my noble friend, who cannot be here in the Chamber at the moment, and I so strongly support these amendments. I hope that the many clear, sensible and legal arguments put forward by so many noble and learned Lords today will encourage the Government to rethink this.

Baroness Hayter of Kentish Town: My Lords, I too am not a lawyer, and I will not even attempt to add to the legal arguments, which have been so well set out by the noble and learned Lords, Lord Woolf, Lord Judge, Lord Thomas of Cwmgiedd and Lord Brown of Eaton-under-Heywood, as well as by the noble Lord, Lord Beith, and others, as to why any decision on the interpretation of retained EU law should be taken at Supreme Court level, as envisaged in the 2018 Act, and why ministerial regulations are simply not appropriate in this matter.
I will say three things. One is that it is a really bad way to make law suddenly, with such a clause, with no consultation either with the judiciary—if this was the consultation that has happened today, I think we can take it as, “No thanks”—or, indeed, with the devolved nations, which we discussed earlier. I will answer the question put by my noble friend Lady Taylor about what the Government have in mind. At a briefing, it was very clear that they already had something in mind, a sunset clause at the end of this year, and my answer is simply that there is something that is not oven-ready at the moment that is waiting to come in. There is a closed envelope somewhere, and it is appropriate that we should be told what exactly is in it, so perhaps we could hear about that later.
Secondly, as the noble and learned Lord, Lord Mackay of Clashfern, has said, Clause 26 could result in the divergence of approach within and between the jurisdictions of the UK on matters where a common approach is essential: things that are fundamental to our UK-wide single market. On Monday, the noble Duke, the Duke of Montrose, recalled that for 40 years EU legislation
“ensured that there was a large amount of similarity and coherence in how these laws were interpreted in the various parts of the United Kingdom. The question that arises now is: will we require to maintain that level of coherence in order to operate as a single national economy? This will be particularly true for food, farming, fishing … in Scotland and … the devolved Administrations.”—[Official Report, 14/1/20; cols. 530-1.]
Harking back to the earlier discussion about the all-United Kingdom economy, this seems a crucial issue. Allowing lower, non-UK-wide courts to interpret the regulations that the noble Duke, the Duke of Montrose, mentioned, environmental matters, as raised by the noble Baroness, Lady Jones, or VAT or duties, which the noble and learned Lord, Lord Judge, mentioned, could open a wide door to divergence on issues within our own single market.
Thirdly, there is obviously a fear that this provision risks undermining workers’ rights, given that the political declaration makes no mention of the rights previously protected by the European Charter of Fundamental Rights and its key principles which have found their way into EU case law. Employees in the UK benefit from the ECJ’s sometimes more generous interpretation of employment rights, such as the right to paid holidays, the requirement for employers to keep records of hours worked to comply with the working time directive, and the ruling as to whether overtime is factored into holiday pay. These have been essential and are now part of UK law—of course via case law. Without a guarantee to uphold the body of case law on workers’ rights, the Prime Minister’s commitment to protect  our employee rights after Brexit will sound more hollow than any chimes of Big Ben, whether on 31 January or any other day.
Clause 26, which has been dropped in with no rationale, prior debate, consultation or Green Paper, diminishes the Bill while introducing uncertainty into our laws. It has no place here. We will seek to remove it, although, as other noble Lords have said and as the noble and learned Lord, Lord Mackay of Clashfern, urged, it would be much better if the Government were to do this.

Lord Keen of Elie: My Lords, I am obliged to the noble Lord, Lord Beith, for moving the amendment in the name of the noble Lord, Lord Pannick. I will seek to offer some explanation and reassurance with regard to the clause in question.
As has been noted by the noble and learned Lord, Lord Brown of Eaton-under-Heywood, we are concerned here with retained EU law. For clarity, Clause 26 draws a distinction between retained EU law and relevant separation agreement law, which is applicable as a consequence of the withdrawal agreement and is untouched by any of these proposals, given our international law obligations. Retained EU law will form part of the law of the United Kingdom. It is then a question of how we approach the interpretation and application of that law, which, in turn, takes us to the question of precedent and the binding force—at present—of decisions of the Court of Justice of the European Union in this context.
Provision has already been made, pursuant to Section 6(5) of the 2018 Act, to confer upon the United Kingdom Supreme Court the power to depart from previous decisions of the Court of Justice of the European Union. The idea that one can depart from such a body of case law is hardly novel. It has been a feature of common law since at least the 1960s, when the judicial committee of the House of Lords expressed its intention to depart from previous case law as and when it felt it was necessary to do so. Therefore, we are not, as it were, moving into novel territory in this context.
The intention behind this clause is to give a power to make regulations to ensure that the United Kingdom courts are not inappropriately bound by retained EU case law as part of the body of United Kingdom law after we have left the European Union. It goes no further than that. These courts may choose to follow that case law, but the point is to ensure that they are not bound to do so in circumstances where they form a view that it would be inappropriate to the development of UK law for them to do so.
The Government are sensible in the manner in which they will seek to exercise the regulatory power. The Bill requires that Ministers must consult the senior judiciary across the whole of the United Kingdom before making any regulations, and indeed may consult other appropriate persons, and any regulations will be laid before Parliament under the affirmative procedure. Those safeguards are clearly in place.
We want to ensure that United Kingdom law after we leave is consistent and clear. The power will be employed in a way that is consistent with our own constitutional norms and traditions: judicial independence, the doctrine of precedent and the separation of powers.  Any regulations will respect these long-established principles but will also allow that retained EU case law is not the sole preserve of the court of final appeal, be it the United Kingdom Supreme Court or, in the context of criminal matters, the High Court of Justiciary in Scotland.

Baroness Hayter of Kentish Town: The Minister says that this will be done under the affirmative procedure. Should that come here, we have always had the right to negate such an order. However, should this House do that, given the advice it has had, it would not be challenged as a constitutional outrage but would be a proper use of this House’s power.

Lord Keen of Elie: It would always be a proper use of this House’s power, albeit there are constitutional norms that apply. However, it is not just this House; the House of Commons would also have the opportunity to address the terms of any regulations. I have no doubt that, having regard to our constitutional norms, this House would have regard to the determination of the House of Commons on that point, but would not be absolutely bound by it. I fully accept that.

Baroness Ludford: The Minister has just said that this would improve consistency. How can it improve consistency in the interpretation of law if you potentially have a proliferation of lower courts that can all reach different judgments? The import of the objections made in the last hour is precisely that having just the Supreme Court, and the High Court of Justiciary in Scotland, is much more a recipe for consistency than what the Government are planning.

Lord Keen of Elie: That is one view as to how we might achieve consistency. However, as the noble Baroness, Lady Ludford, will have noted from the contributions made by a number of noble Lords and noble and learned Lords—in particular the noble and learned Lord, Lord Thomas of Cwmgiedd, and my noble and learned friend Lord Mackay of Clashfern—there are diverse views as to how this could be achieved.
For example, one view is that the power should rest only with the Supreme Court and the High Court of Justiciary but that there should be a reference process. Another view is that the power should be conferred upon the Court of Appeal, a lower court, or the Inner House in Scotland, because that would assist the Supreme Court as and when it came to consider the matter, and speed up the whole process of determining the issue. There are diverse views, as is reflected in the report of the Constitution Committee, as to how this could best be achieved. That is a very compelling reason for taking this regulatory-making power in order that, with the appropriate consultation, we can come to a suitable consensus as to how this is best done in the future. We can then allow for flexibility.
I stress that if, for example, we left the power purely in the hands of the United Kingdom Supreme Court, that might assist in consistency of decision-making—I will come back to the question of precedent in a moment—but it would put immense pressure on the Supreme Court itself and potentially create significant delays for litigants. Given that, it would not be a recipe for certainty; rather, it would be a recipe for uncertainty.
As I say, there are diverse views on how we can best achieve the result that we are all seeking. That is why it is appropriate that we should pause, take the matter forward by way of regulation, consult with the appropriate parties and then determine the best means of doing this. That will have to be resolved before the end of the implementation period.
At the end of the day, the power can be used only to determine which courts can depart from retained EU case law, the circumstances where they may do so and what test may be applied in doing so. It will not be used to set out how the courts are to interpret retained EU case law, because that is a matter for the independent judiciary, and it will not determine that courts may not follow established EU case law.
The noble Lord, Lord Anderson of Ipswich, made a number of points about unleashing uncertainty. With the greatest respect, Section 6 of the existing 2018 Act already provides that the Supreme Court may depart from established EU case law, although it may take significant time before it comes to address a particular question in a particular case. There is, therefore, what he referred to as “uncertainty with effect from now” if we proceed purely on the basis of Section 6.
The noble and learned Lord, Lord Judge, alluded to the issue of precedent and the certainty it brings to the law of the United Kingdom, and he cited the case of Rylands v Fletcher. I recall that as long ago as 1985, in the case of RHM Bakeries v Strathclyde Regional Council, the late Lord Fraser of Tullybelton pointed out that Rylands v Fletcher was not the law of Scotland and he went on to express a judgment that said that it was not the law of England. The point is that with diverse jurisdictions and legal systems within the United Kingdom, there is already room for different sets of precedent and different applications of the law, and we simply have to take account of that. Precedent is a very important aspect of the common law, but it does not bring about uniformity. We have a flexible legal system in Scotland, England and Wales and indeed in Northern Ireland, and we can accommodate the sort of proposal that is being brought forward here in the context of this regulation-making power.

Lord Beith: Can the noble and learned Lord tell us at what level of court he thinks it would be inappropriate to extend these powers, and would that level embrace all those courts which do not have a precedent-creating capacity?

Lord Keen of Elie: As the noble Lord is aware, there is a level of courts, for example the Sheriff’s Court in Scotland, which is not bound by each other’s judgments, and therefore at that level one could arrive at inconsistency of decision-making, and we are conscious of that. The question is where we should best place the determination, and the whole point of this clause is to allow for the flexibility that is required, upon consultation with the appropriate parties, to determine how we can best achieve the outcome that everyone seeks. I am not in a position to say that it will be just the Supreme Court, as it is under Section 6, or to say that it will be just the  Supreme Court and the Court of Appeal. However, one can see a rationale behind the approaches, both of which have been supported by various noble and learned Lords in the course of this debate. What we want to be able to do is to resolve that debate and achieve a consensus that will bring about the best result for the law of the United Kingdom, given its different legal systems. What we are seeking in the end is certainty for those who seek to litigate in our courts, and we would achieve that by coming to a consensus on how we should look at EU case law going forward.
I cannot accept the amendment and at this time I would urge the noble Lord to withdraw it.

Lord Howarth of Newport: How does the Minister defend—if he conceivably can—the violation of the principle of separation of powers embodied in this clause?

Lord Keen of Elie: I do not consider that this clause in any sense violates the principle of the separation of powers.

Baroness Hayter of Kentish Town: Given that that Minister has not answered my noble friend’s question and given that there is a sunset clause on this, there must be something ready to go. Can he not explain what it is?

Lord Keen of Elie: No. What is ready to go is a consultation process. That is why we have not reached a conclusion. The noble Baroness, Lady Taylor, asked two questions, the first of which was, “Are the Government going to use this power?” We are going to use it in order to consult with appropriate parties. May I give examples? Examples have been given by noble and learned Lords. One example is a reference system to the Supreme Court. Another example is to extend this power to the Court of Appeal. That is what we want to determine by virtue of the consultation process we wish to take forward.

Lord Newby: Is the Minister saying that when the consultation goes out, it will in effect be saying, “Give us a clue as to what you think makes best sense because we haven’t the faintest idea ourselves”? Are the Government going to express no thoughts about what might be preferable? Have they had no thoughts? Have they not thought about it before now? In every other aspect of Brexit, the Government have clear, dogmatic, unwavering thoughts. On this single one, they appear to have no thoughts at all. Is that not strange?

Lord Keen of Elie: My Lords, this Government are not dogmatic—the noble Lord is quite wrong about that. Let us be clear: there is a starting point. If I can refer the noble Lord back to Section 6(5) of the 2018 Act, he will see that the starting point is already enacted. However, we want to find a way forward that is more effective and appropriate, and that is the purpose of the consultation process that is allowed for in the clause.

Baroness Taylor of Bolton: Will the Minister answer the point raised about the policy areas the Government have in mind where they could use these powers?

Lord Keen of Elie: It is not a question of having policy areas in mind. We want to take forward a consultation process that will enable us to arrive at an appropriate conclusion as to how we should look at EU case law as a part of retained EU law after the implementation period has expired.

Lord Mackay of Clashfern: My Lords, I understand that the first part of the amendment may be reasonably accommodated within the answer given to the previous question about separation of powers. I cannot see how the second part can be accommodated—formulating the question the court has to decide in deciding whether the previous decision of the Court of Justice of the European Union should be followed.

Lord Keen of Elie: With respect to the noble and learned Lord, we seek to consult on the appropriate test to be applied in taking this matter forward. We intend to do that in consultation with the senior judiciary.

Baroness Hayter of Kentish Town: My Lords, given that the existing law has now been in place since 2018 and all that time could have been used for this consultation, why has this suddenly gone in now with the power to make changes by ministerial decision? If it was not felt at the time that the 2018 position was correct, why has this consultation—which could take place without an Act of Parliament—not already taken place?

Lord Keen of Elie: My Lords, in the interim there had been certain distractions, including a general election—the outcome of which the noble Baroness will be familiar with.

Lord Brown of Eaton-under-Heywood: My Lords, may I just be clear? When in future the High Court, say, is given this power to exercise what currently under the practice direction is only for the Supreme Court, will it not merely be saying that we will not follow this precedent from the European Court of Justice, but declaring retrospectively that it was wrong all the time? Or will it be saying in this particular case that we are not going to follow that principle but in all other cases—cases pending, appeals and so forth—we will? In other words, will there be the retrospectivity we now have under the practice direction, with the court declaring what the law in truth is and saying it was wrongly understood before; or is it merely to be, as legislation has it, that this will be the law in future—we are changing it?

Lord Keen of Elie: That matter will have to be addressed in the context of the regulations that are to be made, but those are the two options available. You can either proceed upon the basis that has pertained since the 1960s, which is, as we have stated, the law as it has always been, or say that the law is about to change. I make the point again that what will be provided for is the circumstances in which a court is not bound by EU case law. It will not be a circumstance in which they are told they are not allowed to follow EU case law; it will be open to them to do so if  they wish.

Lord Beith: My Lords, I found that a very disappointing response from the Minister, for whom I have great respect. It did not answer the question of which courts would now be part of the process and added to the list; it did not answer the question of what test the Government envisage being introduced through the process; and it did not answer the question of why this is not included in the Bill. The attempt to use the regulation process as an ex post facto defence of the fact that the Government have not come up with a policy yet, but would quite like to talk to some of us about what it might be in the future so that it can be put in regulations, is wholly unconvincing.
As the noble and learned Lord, Lord Thomas of Cwmgiedd, pointed out, he was talking to the Government about this 20 months ago. There has been plenty of time to come up with a policy in the interim and not leave us in this situation where we are told, “It’ll be alright, we will bring in some regulations and discuss them with you all; all your concerns will be accommodated”. I do not think that they have been accommodated at all.
I welcome the intervention from the noble and learned Lord, Lord Mackay of Clashfern. As so often on these occasions, he pointed out that with a bit more work, maybe we could get somewhere and achieve something that is consistent with the Government’s intentions but meets people’s concerns.
There are times when Ministers have to recognise the level of feeling and concern which has arisen from significant quarters in the course of Committee proceedings. This has been a remarkable debate and, in the proceedings so far on the Bill, no other debate has brought out such intensity of feeling and concern, particularly from people with significant experience to contribute to the discussion. Ministers have to recognise this. We talk about consultation, and I think that some consultation is required between now and Report.
Certainly, we will want to reflect on what the Minister said on the possibilities—I was encouraged by the intervention of the noble and learned Lord, Lord Mackay —and how we can reconcile what the Government are talking about with the need for some degree of certainty around how the law is to be administered in future. We are certainly not there yet. I beg leave to withdraw  the amendment.
Amendment 21 withdrawn.
Amendments 22 and 23 not moved.
Clause 26 agreed.
House resumed.
Sitting suspended.

NHS and Social Care: Staffing
 - Question

Baroness Watkins of Tavistock: To ask Her Majesty’s Government how they intend to ensure safe staffing in social care and the National Health Service in this Parliament.

Baroness Watkins of Tavistock: My Lords, I beg leave to ask the Question standing in my name on the Order Paper. In so doing, I declare my interests as a nurse, as set out in the register.

Baroness Blackwood of North Oxford: My Lords, patient safety is paramount. We expect health and social care providers to deploy sufficient numbers of suitably qualified, skilled and experienced staff at all times. The NHS People Plan aims to ensure a sustainable overall balance between supply and demand across all staff groups. This Parliament will see the people plan deliver 50,000 more nurses by 2025, a further 6,000 doctors in general practice and 6,000 more primary care professionals, all of which will support safe staffing and better care.

Baroness Watkins of Tavistock: I thank the Minister for her reply and particularly commend the NHS People Plan, yet evidence suggests that urgent action is needed to address the shortages in social care as well as healthcare. Many older people with dementia are failed by our social care system, in part due to costs and the availability of suitable staff. It is vital that the Government resolve the future of social care funding. Without certainty on funding, employers cannot invest in and plan for the future workforce. Dignity in care will be achieved only with rapid, proactive planning. Can the Minister explain the potential delay to the cross-party talks about funding for social care and what approach will be taken to ensure that proper staffing in social care is available during this Parliament?

Baroness Blackwood of North Oxford: I thank the noble Baroness for her question and pay credit to the work she has done in this area. She is absolutely right that we have to make urgent progress in delivering a sustainable social care solution. In the first instance, we have given councils up to £3.9 billion of additional funding in 2019-20, and the Prime Minister has been clear that he wants to see cross-party consensus on a sustainable way forward this year. I look forward to seeing progress made as swiftly as possible and hope that we will see work across this House on it, as I know this place takes the issue very seriously. In addition, we have run a national adult social care recruitment campaign to raise the profile of adult social care and encourage applicants. This has been successful; we have seen a 23% increase in the number of vacancies advertised on the DWP’s “Findajob” platform, which is improving the situation in the short term.

Baroness Walmsley: My Lords, there are particular shortages of nurses in certain specialties such as children’s palliative care, children’s mental health and learning difficulties. What will the Government do to improve the situation in those very important and sensitive areas?

Baroness Blackwood of North Oxford: The noble Baroness is quite right that we want to target recruitment towards the areas with the greatest shortages. That is one of the reasons why, when we announced the new non-repayable funding, we also announced a top-up for targeted specialties struggling to recruit. It is also  why we have announced the availability of placements which can enable nurses to develop experience in specific specialties, which make it easier to recruit and retain those nurses in very rewarding and sometimes hard to recruit specialties.

Baroness Thornton: I am sure the Minister will understand why the House might be slightly sceptical of “as soon as possible” promises, given that we are still waiting for a Green Paper that was promised almost two years ago. A date would be a good idea here.
Do the Government intend to follow the example of the Welsh and Scottish Parliaments and introduce safe nursing staffing legislation? Does the Minister agree with me—and with UNISON, which has 450,000 health workers in its membership—about the ever increasing importance to the NHS of recruiting nurses from overseas? How can the Government justify increasing the health tax, which applies to overseas nationals and will surely make it harder to recruit and retain nurses? Will the Minister suggest to the Treasury that the Government should in fact drop that planned surcharge?

Baroness Blackwood of North Oxford: The noble Baroness will know that appropriate staffing levels are already a core part of the CQC’s registration regime and that the law already requires hospitals to employ sufficient numbers of suitably qualified, skilled and experienced staff at all times. It is also mandatory for staff to provide monthly reports on the average number of care hours per patient per day, which is considered a better measure than staff numbers. However, we recognise the proposals that have come forward regarding staff safety and legislation; they are being considered at the moment.
The NHS surcharge is being considered to make sure that it is at an appropriate level to ensure that we continue to recruit at an appropriate level. At the moment, the rate of recruitment from non-EU countries has increased significantly by more than 150%.

Lord Chartres: My Lords, I am sure the Minister knows that safety is about not just numbers but the continuing development and supervision of nurses and midwives. Can she comment on what the Government are doing to ensure that both nurses and midwives are funded properly for clinical supervision and professional development?

Baroness Blackwood of North Oxford: The right reverend Prelate is quite right. Ever since the tragic events in Mid Staffordshire, the NHS and our nation have been on a journey to make sure that the NHS is one of the safest healthcare systems in the world. This is based broadly on three policy strands: better regulation; greater transparency; and a culture of learning. HSIB is part of that. We hope to move forward in putting legislation in place to ensure that there can be learning without blame, and we hope to ensure that the appropriate training is in place. The people plan, which the noble Baroness, Lady Harding, is in the process of finalising, will ensure that specific proposals on how that will be delivered come forward imminently.

Lord O'Shaughnessy: My Lords, the Government are to be commended for wanting to raise the number of staff in the NHS and social care. In the near term, it is equally important that we make sure that we use the staff we have as efficiently as possible, and that we give them the tools and skills to be as productive as they can, including through the use of technology. To what extent will the digital tools that already exist and are on the market feature in the people plan?

Baroness Blackwood of North Oxford: My noble friend is a great advocate of investment in innovation and technology—and for good reason. One of the health infrastructure plan’s key priorities is ensuring that we bring forward the data and digital transformation solutions that will enable staff to spend more time on caring and less time on administrative and repetitive tasks that could be much better undertaken by some of the digital solutions that are now available. Some of those solutions would manage rotas more effectively and others, such as those being delivered by the £200 million AI hub, will enable, for example, AI solutions in radiology and pathology, which could lead to much earlier and more effective diagnoses in areas such as cancer.

Hong Kong
 - Question

Lord Alton of Liverpool: To ask Her Majesty’s Government what assessment they have made of the situation in Hong Kong, including the recent elections, continuing protests, allegations of police brutality and the arrest of media and humanitarian workers.

Lord Alton of Liverpool: My Lords, I beg leave to ask the Question standing in my name on the Order Paper. In so doing, I declare that I travelled to Hong Kong to monitor the recent elections as a guest of Stand With Hong Kong and Hong Kong Watch, of which I am a patron.

Lord Ahmad of Wimbledon: My Lords, we remain concerned at the situation in Hong Kong. The Foreign Secretary welcomed the peaceful conduct of local elections, and we continue to urge all sides to take the opportunity to find a way through with meaningful political dialogue. It is essential that protests are conducted peacefully and lawfully, and that the authorities respond proportionately. We expect arrests and judicial processes to be both fair and transparent, and we have consistently called for a robust, credible and, indeed, independent investigation.

Lord Alton of Liverpool: My Lords, in welcoming that reply from the Minister, perhaps I might ask how the Government will respond to the evidence given to Parliament by Dr Darren Mann about the police arrest and zip-wiring of medics, which he said amounted to
“grave breaches of international norms and human rights law.”
He described disproportionate brutality, including the shooting of rubber bullets at close range and the use of tear gas in confined areas. Does the Minister agree   that this is in contravention of the United Nations guidelines on the use of less-lethal weapons and breaks international law? Does not the arrest of a young woman outside our own consulate at the weekend mean that it is time for us to demand an independent inquiry, as the Minister said, and for us to take the lead in establishing it and explore the use of Magnitsky-type powers to bring the perpetrators to justice?

Lord Ahmad of Wimbledon: My Lords, on the noble Lord’s final point, as he will be aware, bringing forward Magnitsky-style powers through a sanctions policy is something we are looking at proactively at the Foreign Office, and we will be coming forward with recommendations in the near future. He raises important issues, and we pay tribute to his work in Hong Kong and in consistently raising this issue. We take the allegations set out by Dr Mann’s description of the arrest of medical personnel at the Hong Kong Polytechnic University very seriously. As we have said time and again, we also expect the Hong Kong authorities to abide by their own laws and international obligations.
As I said in my original Answer, we believe that an independent inquiry into events in Hong Kong is a critical step, and the UK has repeatedly called for such an independent inquiry to take place. The noble Lord mentioned a recent arrest outside the British consulate-general. I assure the noble Lord that the UK fully supports the right to peaceful and lawful protest. Indeed, as he will know, a static protest has been in place outside the British consulate-general in Hong Kong for a number of months now.

Lord Geddes: Is my noble friend aware of the reports of police secreting themselves in ambulances, thereby putting at risk the neutrality of the medical services?

Lord Ahmad of Wimbledon: My Lords, there are many reports around the recent situation and unrest in Hong Kong. My noble friend raises one particular issue. Suffice it to say that we take note of any such news stories and ensure that there is an evidence base in support of them. There will be protests and injuries. I assure my noble friend that we continue to implore the Hong Kong authorities to act to support those attending to those injured through such protests to give the right medical attention as soon as possible.

Lord Winston: My Lords, having just returned from the gas attacks in Hong Kong as a visitor and guest of the Chinese University of Hong Kong, I feel that it is really important that the Government understand and represent fairly the issues for the academic community. I talked extensively to the vice-chancellor of the university, who is massively torn between his need to protect his students and obeying what is required by law. Any noise and representation that the Government can make is therefore of immense importance, given the loneliness and difficulties they face at present.

Lord Ahmad of Wimbledon: I assure the noble Lord that we take very seriously our responsibilities in raising the issues around the protests and the response to those protests. We raise issues consistently both with the Hong Kong authorities and indeed with  Chinese counterparts. The noble Lord said he has just returned from a visit. It is important to get a real insight into issues on the ground and, if the noble Lord is willing, I will seek to sit down with him to discuss his views and insights in more detail.

Lord Steel of Aikwood: My Lords, having heard what the doctor said about how medical personnel in Hong Kong deal with the injured—be they protesters, policemen, journalists or bystanders—it is surely intolerable that their work should be interfered with in any way. Given that the Sino-British agreement is registered internationally, should we not be much more assertive in protecting humanitarian law?

Lord Ahmad of Wimbledon: I agree with the noble Lord, and think that it is right, whether we are talking about Hong Kong or anywhere else in the world, that medical professionals, when they are seeking to assist those injured, whatever the reason for the injury, are given unfettered access. As I have said on a number of occasions from the Dispatch Box, we are absolutely committed to the agreement. Indeed, as the noble Lord may be aware, my right honourable friend the Foreign Secretary released a statement on the 35th anniversary of the joint declaration in which he said:
“This agreement between the UK and China made clear that Hong Kong’s high degree of autonomy, rights and freedoms would remain unchanged for 50 years. The undertakings made by China, including the right to freedom of expression, an independent judiciary and the rule of law, are essential to Hong Kong’s prosperity and way of life.”
We stand by that.

Lord Robathan: Is there anything further that Her Majesty’s Government can do in this very difficult situation—perhaps in diplomatic terms, at the UN or wherever—to hold the behaviour of the Chinese up to the scrutiny of the whole world? It is not only the awful thing in Hong Kong, which the noble Lord, Lord Steel, has just spoken of, but also the Uighurs in the province of Xinjiang. It is shocking and should be exposed to the whole world.

Lord Ahmad of Wimbledon: My noble friend raises some very important points. I assure him that that we take seriously our responsibilities to raise the issues both of Hong Kong and of the Uighurs in Xinjiang. As the UK’s Human Rights Minister I have taken this forward and, during our formal statements at the Human Rights Council, I have directly raised the issue of the Uighur community, as well other persecuted minorities in China.

Climate Change: COP 26 and Civil Society
 - Question

Baroness Boycott: To ask Her Majesty’s Government what plans they have to engage civil society in climate change issues ahead of COP26, to be held in Glasgow in November 2020.

Lord Duncan of Springbank: My Lords, we engage regularly with civil society, and will continue to do so en route to COP 26 and beyond. As a delegate at COP 25 in Madrid, and while an MEP in Lima, Paris and Marrakesh, I saw at first hand the important role that civil society plays in such gatherings, and anticipate that such groups will be vital to the success of COP 26.

Baroness Boycott: I thank the Minister for his Answer, but people now accept that civil society has a very important role to play. The location of Madrid was agreed at the last minute, but the fact that there was so little civil society engagement led to its failure. Therefore, I do not feel very reassured by the Answer that the Government are really on the case with this. When we signed up and bid to host COP 26, did we agree to anything—in the way that a country hosting the Olympics agrees to enhance sport in schools—such as making the understanding of climate change more available to everyone?

Lord Duncan of Springbank: The noble Baroness is right to state that COP 25 in Madrid did not have the full participation of civil society. One of the simple reasons was that COP 25 was due to be in Santiago. I suspect that a number of people had booked tickets there and discovered that they could not get a refund. However, I suspect that in Glasgow there will be full participation in those proceedings, because right now there is a great appetite to explore and express those views. In response to the second part of the question, I can say that Glasgow was chosen because it is seventh-highest in the world in the global destination sustainability index. We also have a direct train line into the venue, which will ensure a lower carbon footprint. I believe that there will be a legacy left in Glasgow, and that the Governments of Scotland and the UK will continue to build on it.

Lord Teverson: My Lords, I congratulate the Government on getting COP 26 in Glasgow. It is a great thing for the country. It is also important because of the climate emergency which the other place has declared. I was pleased to hear the Prime Minister say in October that there would be a cabinet committee for climate change, to ensure that it was across Government. How many times has it met under the chairmanship of the Prime Minister?

Lord Duncan of Springbank: The noble Lord will be aware that very soon after that was announced, there was an election, and shortly after the election there was Christmas. Unfortunately, the cabinet committee has not yet met, but it will meet this month, very shortly. I will report back to this House on what has been discussed at that meeting.

Lord Hamilton of Epsom: I congratulate my noble friend on the United Kingdom lowering its CO2 emissions from 2% to 1% of the world’s output, but meanwhile, worldwide net emissions of CO2 have gone  up. Are we not in great danger of meeting 2050 with no net CO2 emissions only for worldwide CO2 emissions to have gone up, because the Chinese and Indians will have continued to build coal-burning power stations?

Lord Duncan of Springbank: My noble friend is right to express that simple point: carbon emissions have gone up year on year since the beginning of the COP process, and some significant emitters are doing too little to address this. The United Kingdom has been powerful in its advocacy of decarbonising, while still growing the economy. If we can continue to grow the economy and secure jobs while decarbonising, that is a model that the world should follow.

Lord Grantchester: My Lords, rather in contradiction to what was said in an earlier question, the Government are woefully slow, as the House debated last June, in coming forward with policies and measures to meet new emissions targets—starting with the fourth and fifth carbon budgets, which are not being met, and including bringing international aviation and shipping emissions within the scope of the Paris Agreement. The Government’s White Paper is already at least nine months beyond its promised date. Would not the best way to encourage debate on these issues be to get on with these essential tasks and provide real leadership?

Lord Duncan of Springbank: I am sure that the noble Lord will not be surprised to hear that I do not agree. In the Government’s declaring net zero by 2050, the UK became the first major economy to do so. We will publish our energy White Paper imminently. The EU itself has struggled with aviation. We must ensure that aviation and international shipping are part of the decarbonisation process. Not to do so would be to ignore one of the most important elements of the carbon in our atmosphere.

Duke of Montrose: My Lords, what has the response of the Scottish Government been to this initiative?

Lord Duncan of Springbank: My Lords, the Scottish Government have supported the Government’s approach and have welcomed the arrival of the COP process in Glasgow. We are working in close collaboration with Glasgow City Council and the Scottish Government to ensure that the COP is a success. We are on the same page, we recognise the same challenges and we are pulling on the same rope in the same direction.

Lord Foulkes of Cumnock: My Lords, may I, as someone from Edinburgh, welcome the fact that the conference is to be held in Glasgow? Will the Minister encourage his colleagues to ensure that as many as possible of the international conferences to be held in the United Kingdom are held outside London—in Birmingham, Manchester and Liverpool, as well as in Edinburgh and Glasgow? Will he also do everything he can to ensure that both Edinburgh and Glasgow remain part of the United Kingdom? I am sure he will.

Lord Duncan of Springbank: That was an extraordinary link, but I fully endorse the noble Lord’s belief that Scotland, including Glasgow and Edinburgh, must remain part of the United Kingdom. We are stronger and better together: I am happy to confirm that. We should have more international conferences outside London, and Scotland is a perfect place for that; so are the north of England, Wales and the West Country. We have an extraordinary country with extraordinary offerings. Let us do more outside London.

Baroness Hayman: My Lords, I declare my interests as set out in the register. COP 26 gives this country the opportunity both to show leadership and to showcase achievement. However, welcome though the commitment to net zero in 2050 is, does the Minister agree that by the time of the Glasgow meeting we need a sector-by-sector detailed road map of how we will actually achieve that target?

Lord Duncan of Springbank: The noble Baroness is absolutely right. The White Paper will be a part of that, and will set out exactly how we will both achieve our own domestic targets and show the leadership required to bring about the necessary negotiations to deliver a good outcome in Glasgow.

Extinction Rebellion: Prevent Programme
 - Question

Lord Berkeley: To ask Her Majesty’s Government what assessment they have made of the decision by Counter Terrorism Policing South East to include Extinction Rebellion on a list of extremist ideologies to be referred to the Prevent programme.

Baroness Williams of Trafford: My Lords, CT Policing South East is quoted categorically as saying that it does not classify Extinction Rebellion as an extremist organisation, and its inclusion in the document was an error of judgment. Extinction Rebellion is not considered an extremist group under the 2015 definition of extremism; the Home Secretary has been clear on this point.

Lord Berkeley: I am grateful to the noble Baroness for that clarification, but of course the damage has been done. How can anyone, even if they make a mistake, consider a peaceful demonstration by thousands of people, mostly children—including some of my family—worried about the future of the planet as extremist ideology? I suggest that the Minister instead adds to a final list the climate change deniers and the oil companies funding them.

Baroness Williams of Trafford: My Lords, they too have their right to free speech in this country—a point that goes to the heart of the noble Lord’s original Question. CT Police South East was quick to say  that it had made an error of judgment. People do make mistakes.

Lord Dholakia: Does the Minister accept that lawful demonstrations are an essential part of our democracy? Extinction Rebellion is a non-violent campaign and to equate it with proscribed organisations is unacceptable. Prevent has already received critical reviews from our Muslim community and this incident has not helped. Will the Minister publish the full criteria taken into account when considering proscription of this nature so that these could receive the full scrutiny of Parliament?

Baroness Williams of Trafford: The noble Lord will appreciate that we do not discuss how the Home Secretary comes to decisions on proscription, but she does so on the vigorous legal advice provided to her at the time. Extinction Rebellion was on a list of those with an extremist ideology, as opposed to a terrorist ideology. However, CT Police South East has accepted that this was wrong.

Lord Cormack: My Lords, does my noble friend accept that, while it is right that the police have acknowledged their error of judgment, demonstrators made an error of judgment when they glued themselves to trains, stopped people going about their normal business and interfered with people going to visit the sick in hospital? There are errors of judgment on both sides and we should emphasise that.

Baroness Williams of Trafford: My noble friend makes a good point. Many errors of judgment were made in some of the protests. He is right that not only were people prevented from seeing sick relatives in hospital, some of their relatives died before they could visit them. CT Police South East has done the right thing and my noble friend is right to point out some of the issues that the public faced during those protests.

Lord Rosser: My Lords, at what level in the police was this counterterrorism document, for which an apology has now been given, cleared as being appropriate? Was the Home Office in possession of a copy of that document, or aware of its content, prior to it being exposed in the Guardian? If the answer is that it was cleared at a police regional or area level and the Home Office knew nothing about it, surely it is wrong that a document of that kind—containing the guidance it did about a campaign, not about a terrorist organisation—does not require clearance at a senior level, at least in the police, to ensure both appropriateness and consistency of approach across the country?

Baroness Williams of Trafford: My Lords, the assessment was made under the local area CT plan, which is independent of the Home Office. Obviously it came to the attention of the police and, as I said, they have accepted their error of judgment.

Viscount Ridley: My Lords, notwithstanding what has been said today, is my noble friend aware of a Policy Exchange report prepared by two people—one the former head of the Metropolitan Police Counter Terrorism Command—called Extremism Rebellion? It argued:
“The police response to law-breaking by demonstrators must be far more proactive in enforcing the laws that relate to public  protest, preventing Extinction Rebellion and other political activists from embarking on illegal tactics that cause mass disruption and significant economic damage.”

Baroness Williams of Trafford: My noble friend is right. The public order issues around these protests were significant, particularly to the people of London, Bristol and elsewhere. As he said, they caused great disruption to people’s lives.

Baroness Jones of Moulsecoomb: The right to protest is inherent in our British constitution, such as it is, and this sort of error by the police—it is great that they have acknowledged it—should not happen. Does the Minister think that younger people who have put themselves out on the streets to protest may have less trust in the police than ever now?

Baroness Williams of Trafford: I do not think so, but the noble Baroness is right that the right to protest is enshrined in our values in this country. Nobody, I think, is disputing people’s right to protest, but a line is crossed in terms of protests and public order offences when that right to protest infringes on people’s everyday lives.

Lord Blunkett: My Lords, on the occasions when mistakes were made when I was in the Home Office, it was often at a very junior level. I will never forget a youngster in tears when a report was published that had not been cleared. I had to assure her that it was the person who had failed to supervise her, not her, who should be on the line. I commend the Minister for her openness and her willingness to put this matter straight. There is a very big difference between labelling people as extreme because they happen to be on the streets promoting a just cause and measures taken by a very few that lead to anarcho-syndicalism. If we can distinguish between the two and use the legitimate law to deal with the latter, it would be a fine thing.

Baroness Williams of Trafford: As always, the noble Lord makes a very sensible point, and I thank him for it. We have to make those distinctions.

Lord Forsyth of Drumlean: My Lords, does my noble friend recall that it is a fundamental part of our democracy that Members of both Houses are able to come here to vote and enjoy free passage? Does she recall that last year these people were responsible for preventing disabled people getting to and from this House? That is unacceptable and why we used to pass sessional orders instructing the Metropolitan Police to ensure that that happened.

Baroness Williams of Trafford: My noble friend is right. People were prevented from coming here to vote and had to use trains where they usually would have made their journey to work using buses. It made life more expensive for them. My noble friend is right to point out that demonstrations cannot disrupt people’s everyday lives in the way that they did.

Criminal Records Notifications Disclosure
 - Private Notice Question

Lord Kennedy of Southwark: Asked by Lord Kennedy of Southwark
To ask Her Majesty’s Government what action they are taking following reports that criminal record notifications were not disclosed to EU Member States of 75,000 convictions.

Lord Bethell: My Lords, Britain is one of the leading contributors to the European Criminal Records Information System. We are currently working hard to upgrade our legacy systems. The central authority for the exchange of criminal records is working at pace to implement the technical fixes which will ensure that all the correct data is shared with EU members.

Lord Kennedy of Southwark: My Lords, this revelation is both shocking and worrying. Does the Minister accept that this is a huge failure on the part of the Government and that it is possible that dangerous offenders have returned to their home country without the UK making proper notification to the authorities? When the error was discovered, it was not corrected—shamefully—because of the risk of reputational damage to the UK. Can the Minister give the House a timescale for clearing the backlog of these notifications? What is his department doing to review procedures to eliminate the scandalous situation which was discussed at meetings but not acted upon?

Lord Bethell: The noble Lord is entirely correct: this is a very serious matter and the Government take it very seriously. We cannot duck the importance of getting this right. I shall say a few words to explain the context for this incredibly complex and technical matter.
Britain remains one of the leading contributors of data to ECRIS. Interestingly, the UK sent 30,000 conviction notifications through ECRIS to EU member states in the past year and received 16,000, which gives an idea of the balance of contributions. In the UK, we are dealing with legacy systems that are profoundly out of date, and with many EU agencies and 27 EU nations, so the complexity of this task is enormous.
I reassure the House that throughout this period ECRIS’s dynamic system was working as well as expected and delivered a fine service to our EU partners. The problems involved were connected only with dual-national citizens—those with British and EU passports—and those who did not have fingerprints in their files and therefore were probably connected with minor crimes. Following this revelation, we are working our hardest to get to the bottom of the problem. It is not possible to provide a concrete timescale at the moment, but I reassure the House that a considerable investment is being made through the national law enforcement database that will considerably enhance our ability to deliver good data to our partners.

Baroness Hamwee: My Lords, is it the case that this goes back as far as 2015? However far it goes back, when was it actually discovered? The underlying question is: how can we expect co-operation from other states, which is necessary for the security of the UK, if we are not open with them when things go wrong?

Lord Bethell: The original database was put together in 2012, and records suggest that the problem was first identified in 2015. When I asked about these dates, I shared some of the surprise in the House at these extremely long time periods, but I reassure noble Lords that our partners are understanding of the problems we face, because every country has legacy police database issues of its own. All countries are trying to meet the needs of the 21st century, particularly by turning archive and legacy data into something that is usable today. It is noticeable that when the alert was shared at the Council of Europe working group which discusses mutual collaboration on policing issues, there was positive and understanding feedback from our EU partners.

Lord Robathan: My Lords, can my noble friend tell me the Government’s position on future collaboration with other EU police forces after we leave the EU, because this is an important issue?

Lord Bethell: My noble friend is right, and police collaboration after Brexit is one of the big priorities of this Government. That is why in the implementation period, we will be discussing this with the EU and our partners. The political declaration envisages a relationship spanning operational and judicial co-operation, data-driven law enforcement and multilateral co-operation through EU agencies. Those three important silos will be the basis of our ongoing negotiations.

Lord Harris of Haringey: My Lords, we all appreciate that the Home Office must be a difficult government department for Ministers to supervise and control. I can think of a former Home Secretary who felt obliged to offer his resignation over these sorts of matters, and my noble friend Lady Hughes resigned because of failures within the department. The former Home Secretary, Amber Rudd, also had to resign because she had inadvertently misled the House of Commons as a result of poor information. Can the Minister tell us—in answer to the question of the noble Baroness, Lady Hamwee, which was not answered—precisely when Ministers were notified that this failure had occurred, and who took the decision that it should not be made public on the basis of reputational damage? Are any Ministers contemplating their positions?

Lord Bethell: The paper trail is extremely complex, and I am not in a position to give the kind of blow-by-blow account that the House would like. I sympathise with the question, and I would like to be able to give the noble Lord more detail. I am afraid that these issues are a necessary part of upgrading our technical and data arrangements. This is a complex and ongoing project, and while this mistake is extremely regrettable, at no point has there been any suggestion that those involved have not behaved with best intentions.

Baroness Ludford: My Lords, unfortunately this issue appears to go not only to competence—it paints a rather sorry picture of a Home Office-related database—but to trust. The question of when the police and Ministers knew about this problem, which was asked about previously, harms our reputation. Unfortunately, it comes swiftly on the heels of another  revelation that is being pursued in the European Parliament, which is that the UK is being charged with the illegal copying of data from the Schengen Information System on to a national database and then sharing it with private companies. An internal report from the European Commission makes very interesting reading, but I do not know whether the Commission is pursuing infringement proceedings. However, none of that will help with the subject that we will be discussing later today —the question of seeking a data adequacy assessment from the European Commission. We are not exactly scoring 10 out of 10 on either competence or trust in our handling of European data shared under data-sharing arrangements.

Lord Bethell: The data arrangements that Britain is committed to are handled with great delicacy by this country. Ministers are thoroughly committed to trying to make them work, and Britain has a very good record on both technical delivery and trust. I go back to the statistic that I shared earlier: 30,000 conviction notices were sent through ECRIS to our European partners, whereas 16,000 were received. That is an indication of what a strong and energetic partner we are in these matters, and I reassure the House that that remains the commitment of the Government.

Lord Soley: The Minister should be aware of the reports by the Brexit committees that I and other Members of the House have been on concerning the importance of the security issue, particularly after we leave the EU at the end of this year. It is profoundly important and has been discussed time and again. What we need to hear now from the Minister is not just the important answer to my colleague’s Question but whether the Government will make a full Statement to this House as soon as they have all the facts—he says that he does not have them all available at the moment. We need to know those facts. They are profoundly important for our negotiations with the European Union on the whole issue of security and the European arrest warrant and all that goes with it.

Lord Bethell: The noble Lord is quite right to emphasise the importance of this matter, but the correct channel for communication with our EU partners is through dialogue with COPEN, the European Council working group. My understanding is that it is the intention of the ACRO Criminal Records Office, which is the liaising agency with COPEN, to maintain a dialogue, to keep COPEN up to date and to respond to any concerns from our EU partners. Those concerns have not come through in a meaningful way. Although I am keen to be here and to keep the House up to date, it is really through that channel that we should keep our EU partners up to date.

Petroleum (Amendment) Bill [HL]
 - First Reading

A Bill to prohibit licensing to search and bore for petroleum and onshore hydraulic fracturing activities; to amend the principal objective for the Oil and Gas Authority to be to meet the carbon reduction target for   2050 under the Climate Change Act 2008; and to provide for the Oil and Gas Authority to produce strategies which include the phasing out of the extraction and use of petroleum and transitional planning towards renewable energies.
The Bill was introduced by Baroness Sheehan, read a first time and ordered to be printed.

Public Advocate Bill [HL]
 - First Reading

A Bill to establish a public Advocate to provide advice to, and act as data controller for, representatives of the deceased after major incidents.
The Bill was introduced by Lord Wills, read a first time and ordered to be printed.

House of Lords (Elections and Reform) Bill [HL]
 - First Reading

A Bill to make provision about elections to, and membership of, the House of Lords; and for connected purposes.
The Bill was introduced by Baroness Bennett of Manor Castle, read a first time and ordered to be printed.

Property Boundaries (Resolution of Disputes) Bill [HL]
 - First Reading

A Bill to make provision for the resolution of disputes concerning the location or placement of boundaries and private rights of way relating to the title of an estate in land; and for connected purposes.
The Bill was introduced by the Earl of Lytton, read a first time and ordered to be printed.

Abortion Bill [HL]
 - First Reading

A Bill to decriminalise the consensual termination of a pregnancy which has not exceeded its twenty-fourth week and in other prescribed circumstances; and to create a criminal offence for non-consensual termination of pregnancy.
The Bill was introduced by Baroness Barker, read a first time and ordered to be printed.

European Union (Withdrawal Agreement) Bill
 - Committee (2nd Day) (Continued)

Relevant documents: 1st Report from the Delegated Powers Committee, 1st Report from the Constitution Committee

  
Clause 27: Dealing with deficiencies in retained EU law

Amendment 24

Baroness Ludford: Moved by Baroness Ludford
24: Clause 27, page 32, line 35, leave out paragraph (c)Member’s explanatory statementThis amendment, coupled with another, prevents a widening of the definition of “deficiency” in relation to retained EU law which would allow the Government to make additional changes by delegated legislation.

Baroness Ludford: My Lords, at the request of the noble Baroness, Lady Hayter, I will move Amendment 24, to which I am a co-signatory. I will also speak to Amendment 26.
When the European Union (Withdrawal) Act 2018 was a Bill, our Constitution Committee—in an earlier report in September 2017—expressed great reservations about the exceptionally wide delegated powers in that Bill. In respect of what became Section 8, the Committee was not at all happy with the extensive powers to make such regulations as Ministers considered appropriate to deal with
“any failure of retained EU law to operate effectively, or … any other deficiency in retained EU law”
arising from withdrawal. The Committee was unhappy that this application of a subjective test to a broad term like “deficiency” made the reach of the provision potentially open-ended.
In the Explanatory Notes, the Government had said that
“a 
That was why our Committee was worried about subjectivity. It was also concerned that it was going to be difficult to distinguish between powers necessary to make more technical changes to the existing body of EU law and anything that would creep into the area of new policies on matters that previously lay within the EU’s competence. It was afraid that, whatever assurances there were from the Government about intentions to limit their powers to technical matters, the Bill as drafted did not impose such a constraint. That was all to express the worry at the time of the Bill that became the European Union (Withdrawal) Act 2018.
Now that we are two-and-a-bit years further on, our Constitution Committee—in the report it issued yesterday—has expressed further unhappiness at the Government’s wish in Clause 27 to amend Section 8 of the 2018 Act in order to expand the remit of correcting deficiencies. It is worried that
“clause 27(2)(c) and 27(6) amend section 8 to insert vague and potentially important new categories of deficiencies which would trigger the broad ministerial powers conferred by the 2018 Act.  
It reminds us that
“Section 8 of the 2018 Act lies at the heart of the concerns we expressed in our reports on the European Union (Withdrawal) Bill”,
as I earlier cited. It concludes:
“Any expansion of the powers under section 8 requires substantial justification. The Government should explain why the powers in clause 27(2)(c) and 27(6) are necessary, and if unable to do so, should remove them from the Bill.”
That is the challenge to the Government: to explain why they need this further widening of the powers under Section 8 to correct so-called deficiencies.
The delegated powers memorandum says about the justification for taking the power:
“These amendments are necessary to allow the power to function in the revised context of the implementation period.”
We were always going to have an implementation period. I simply do not understand this next sentence:
“It was not possible to draft the power in this manner when the EU (Withdrawal) Act 2018 was passed, because that Act was drafted without prejudice to the outcome of the negotiations, and so could not take into account the prospect of a withdrawal agreement.”
We knew that there had to be a withdrawal agreement; Theresa May had reached a draft withdrawal agreement. I cannot now remember the date on which the 2018 Act became law—I have it here somewhere, but someone will remind me—but of course we knew there was going to be a withdrawal Act, so I do not understand that bit in the explanatory documents at all.
I remind noble Lords that Amendment 24 concerns the insertion proposed by Clause 27(2)(c) of the present Bill, where the Government would have power to correct deficiencies where the retained EU law is not clear in its effect as a result of the operation of any provision of Section 8 of the 2018 Act. The phrase
“not clear in its effect as a result of the operation”
gives the Government quite a wide scope for making regulations. As I say, that is on top of the already pretty wide powers under Section 8 of the 2018 Act. Amendment 26—I need to remind myself of its exact wording as I have too many papers in my hands—also addresses provisions to widen the scope for correcting deficiencies in a way that certainly worried the Constitution Committee and therefore worries me and colleagues, including the noble Baroness, Lady Hayter, if I may speak for her on this, who have signed the amendment. I would be grateful if the Minister could explain very clearly why this power is justified.

Lord Tunnicliffe: My Lords, Clauses 27(2)(c) and 27(6) of the Bill amend Section 8 of the European Union (Withdrawal) Act 2018 to expand the definition of deficiencies in retained EU law and to include deficiencies arising from the end of the implementation period. In its interim report on the first version of the WAB, your Lordships’ House’s Constitution Committee expressed concern that the power to expand the definition of deficiency was “vague” and could insert “potentially important new categories” without any real justification.
During the passage of the 2018 Act, we were repeatedly assured that there was nothing to worry about in relation to these powers, as they would cease to operate  on exit day. However, we are now told that the power needs to be extended to address deficiencies arising from the implementation period. Given that we had an estimate of the total number of SIs to be made under the 2018 Act, can the Minister provide an estimate of how many would arise as a result of extending this power?
The Hansard Society and others very helpfully tracked the Government’s use of Section 8 powers during the withdrawal negotiations and the results were not promising, with many SIs tabled late in the process and some even having to be withdrawn and retabled as they contained their very own deficiencies. In the light of the Government’s record, is the proposed extension of the Section 8 powers simply a case of Ministers trying to buy more time for work that should have been done already? What guarantee is there that extending the Section 8 powers will not occur every other year?

Lord Callanan: My Lords, I thank the noble Baronesses, Lady Ludford and Lady Hayter, for their amendments and the noble Lord for his contribution to the debate. I also express my thanks to the Constitution Committee for providing what was an extremely thorough analysis of this Bill. I hope my response will provide reassurance to noble Lords about the purpose of these clauses; if the House will forgive me, I will go into quite a bit of detail on this.
As noble Lords will know, the European Union (Withdrawal) Act 2018 was drafted without prejudice to the outcome of our negotiations with the EU. However, now that we have agreed a withdrawal agreement together with the implementation period, as the noble Baroness, Lady Ludford, observed, it is necessary to update that Act to ensure that it can still fulfil its intended purpose in light of the new circumstances.
The subsections to which the noble Baronesses have tabled their amendments are there to ensure that the power can continue to meet the broader goal, which was much discussed during our debates on the 2018 Act, if noble Lords remember, and on which there is a widespread measure of agreement across the House. It is simply to ensure that the law continues to operate correctly, as it was passed at the time. To provide the noble Baroness, Lady Ludford, with a specific example of the kind of thing to which we are referring, we will need to replace the previous deficiencies in the statutory instrument on telecoms, which will no longer work because EU-derived domestic legislation will have been amended during the implementation period to implement the new EU regulatory framework for electronic communications. That will be changed during the implementation period and we may well have to go back to the previous fix in order to update it and provide a functioning statute book at the end of the implementation period. That is why we need to extend that power.
Moving on to the specifics of Amendment 24, EU law will of course generally continue to apply in the UK during the implementation period. This Bill takes the approach of providing what are known as glosses for EU-derived domestic legislation, to clarify the way in which EU-related terms should be read so that our  laws will continue to work during this period. Obviously, as a non-lawyer, the only “gloss” that I am familiar with is gloss paint, but for the benefit of the House, glossing is a technical device used to direct readers of the law to interpret specific phrases without textually amending the original provisions. Apparently, it is a fairly standard legal clause. When retained EU law is created at the end of the implementation period, the EU-derived domestic legislation will be the glossed version of that law. Subsection 2(c) ensures that the powers in Section 8 of the European Union (Withdrawal) Act 2018 can be used to fix ambiguities which may arise as a result of the approach that we have taken to the saving and exceptions of retained EU law, such as the application of the glosses set out in Clause 2 of the Bill. In our view, it is right and appropriate that the Section 8 power is made available for this particular purpose.
Turning to Amendment 25, Parliament has already given its approval to the power in Section 8. A large number of SIs have been laid under this power, as the House will be aware, to make minor or technical amendments to ensure continuity and to minimise disruption. Clause 27(5) extends that sunset on the deficiency power in Section 8 of the European Union (Withdrawal) Act 2018 so that it now hinges on IP completion day instead of exit day—31 December rather than 31 January. This ensures that this power can be used, as intended, for up to two years following the creation of retained EU law in the new scenario, bearing in mind that we will still have ongoing cases of EU retained law occurring during the implementation period. Without this fix, the Government may have insufficient time, following IP completion day, to identify and correct deficiencies with this power. For example, it is possible that some deficiencies will become apparent only after the conversion of EU law has taken place and time will then be needed to make the necessary legislation to fix them. In these cases, without extending the sunset on this power, we may need to bring forward additional primary legislation to make what will be minor technical changes to correct issues that have arisen within the statute book.
On Amendment 26, it is necessary that Clause 27(6) remains in the Bill. Without the amendment made by subsection (6), we may not be able to use the deficiencies power to correct deficiencies arising as part of the whole process of withdrawal, including as a result of the implementation period or the wider withdrawal agreement. For example, it is possible that previous deficiency SIs will need amending or revoking as they may no longer work at the end of the IP due, as I said earlier, to any new EU laws that are introduced during the implementation period.
Removing this subsection would jeopardise the certainty provided by this approach for businesses and individuals at the point at which EU law ceases to apply in the UK. I would like to reassure both noble Baronesses that the restrictions on this power, established by the European Union (Withdrawal) Act 2018, remain the same to a great extent. Moreover, the procedure for negative SIs will also continue to be subject to sifting, as was originally provided for by Part 1 of Schedule 7(3) to that Act.
Finally, subsections 2(c), 5 and 6 of Clause 27 are essential to update the Section 8 power in the European Union (Withdrawal) Act 2018 for it to fulfil the purpose of ensuring that the UK has a functioning statute book, in light of the withdrawal agreement. It is appropriate for a responsible Government to have the means to correct any deficiencies in the statute book, in light of these new circumstances.
I apologise to the House for the essentially technical nature of the explanations, but I hope my reassurances and explanations will enable the noble Baroness, Lady Ludford, to withdraw the amendment.

Lord Tunnicliffe: Could the Minister answer my question and assure us that there will be no further extension of the powers in Section 8?

Lord Callanan: We certainly have no current plans to extend it any further.

Baroness Ludford: The Minister gave an example of telecoms legislation, which will change. Why can such deficiencies not be dealt with under the existing text of Section 8—namely
“any failure of retained EU law to operate effectively … or any other deficiency in retained EU law.”?
Why, in the example he gave, is Section 8, as it exists now in the 2018 Act, not adequate?

Lord Callanan: Of course it may be possible to continue to use that power but until we see how the legislation works out—how it is introduced during the implementation period—we will not know that exactly. We therefore think it appropriate to extend the sunset period, et cetera, to give us the new powers to correct upcoming or future legislation that may be introduced during the implementation period.

Baroness Ludford: I was not talking about the length of the time of the powers but about extending the scope. Amendments 24 and 26 are relevant to the provisions that would insert new subsections (2)(ea) and (9), which widen the criteria for finding a deficiency. If there were a change in telecoms legislation, the existing Section 8 in the 2018 Act seems perfectly adequate because the Government could say that there is a failure of retained EU law to operate effectively, because telecoms legislation has changed. That is enough. We do not need the new, widened scope to find a deficiency.

Lord Callanan: It is certainly the view of our legal advisers that we would potentially need the new, widened powers to be able to do that, but I can write to the noble Baroness with further details of why it is necessary.

Baroness Ludford: I have probably made it fairly clear that I do not find the Minister’s assurances terribly convincing, and I look forward to his letter. Perhaps the legal advisers can explain to him why it would be necessary in my example. Our Constitution Committee has consistently warned us against wide powers in this area—things where there could be mission creep outside technical corrections to policy changes. I think its alarm bells are flashing on this, which is  pretty convincing to me. The Government giving themselves a power to correct deficiencies because something
“is not clear in its effect”
and has something to do with
“any aspect of that withdrawal”
is pretty wide in scope.
I have to confess that I have not been reassured or convinced by this short exchange, but that is probably all I will get until we see further information. I beg leave to withdraw Amendment 24.
Amendment 24 withdrawn.
Amendments 25 and 26 not moved.
Clause 27 agreed.
Clauses 28 to 30 agreed.

Amendment 27

Baroness Hayter of Kentish Town: Moved by Baroness Hayter of Kentish Town
27: After Clause 30, insert the following new Clause—“Oversight of negotiations for future relationshipAfter section 13B of the European Union (Withdrawal) Act 2018 (certain dispute procedures under withdrawal agreement) (for which see section 30 above) insert—“13C Negotiations for future relationship(1) A Minister of the Crown must, before the end of the period of 30 Commons sitting days beginning with the day on which exit day falls, make a statement on objectives for the future relationship with the EU.(2) A Minister of the Crown may, at any time after the initial statement is made, make a revised statement on objectives for the future relationship with the EU.(3) A statement on objectives for the future relationship with the EU must be consistent with the political declaration of 17 October 2019 referred to in Article 184 of the withdrawal agreement (negotiations on the future relationship).(4) A Minister of the Crown may not engage in negotiations on the future relationship with the EU unless—(a) a statement on objectives for the future relationship with the EU has been approved by the House of Commons on a motion moved by a Minister of the Crown, and(b) a motion for the House of Lords to take note of that statement has been moved in that House by a Minister of the Crown.(5) In conducting negotiations on the future relationship with the EU, a Minister of the Crown must seek to achieve the objectives set out in the most recent statement on objectives for the future relationship with the EU to have been—(a) approved by a resolution of the House of Commons on a motion moved by a Minister of the Crown, and(b) the subject of a motion of the kind mentioned in subsection (4)(b).(6) After the end of each reporting period, a Minister of the Crown must—(a) lay before each House of Parliament a report on the progress made, by the end of the period, in negotiations on the future relationship with the EU, including—(i) the Minister’s assessment of the extent to which the outcome of those negotiations is likely to reflect the most recent statement on objectives for the future relationship with the EU to have been approved by  the House of Commons, and the subject of a motion in the House of Lords, as mentioned in subsection (4), and(ii) if the Minister’s assessment is that the future relationship with the EU is, in any respect, not likely to reflect that statement, an explanation of why that is so, and(b) provide a copy of the report to the Presiding Officer of each of the devolved legislatures and to—(i) the Scottish Ministers,(ii) the Welsh Ministers, and(iii) the First Minister and deputy First Minister in Northern Ireland or the Executive Office in Northern Ireland.(7) Subsections (8) and (9) apply if, in the opinion of a Minister of the Crown, an agreement in principle has been reached with the EU on a treaty the principal purpose of which is to deal with all or part of the future relationship with the EU.(8) A Minister of the Crown must lay before each House of Parliament—(a) a statement that political agreement has been reached, and(b) a copy of the negotiated future relationship treaty.(9) A treaty in the same form, or to substantially the same effect, as the negotiated future relationship treaty may be ratified only if the negotiated future relationship treaty has been approved by a resolution of the House of Commons on a motion moved by a Minister of the Crown and—(a) the House of Lords has not resolved, within the period of 14 Lords sitting days beginning with the day on which the negotiated future relationship treaty is laid before that House, that any treaty resulting from it should not be ratified, or(b) if the House of Lords has so resolved within that period, a Minister of the Crown has laid before each House of Parliament a statement indicating that the Minister is of the opinion that the treaty should nevertheless be ratified and explaining why.(10) Section 20 of the Constitutional Reform and Governance Act 2010 (treaties to be laid before Parliament before ratification) does not apply in relation to a treaty if subsection (9) applies in relation to the ratification of that treaty.(11) In this section—“devolved legislature” means—(a) the Scottish Parliament,(b) the National Assembly for Wales, or(c) the Northern Ireland Assembly;“future relationship with the EU” means the main arrangements which are designed to govern the security and economic aspects of the long-term relationship between the United Kingdom and the EU after IP completion day and to replace or modify the arrangements which apply during the implementation period, but does not include the withdrawal agreement;“negotiated future relationship treaty” means a draft of a treaty identified in a statement that political agreement has been reached;“negotiations” means negotiations the opening of which, on behalf of the EU, has been authorised under Article 218 of the Treaty on the Functioning of the European Union;“reporting period” means—   (a) the period of three months beginning with the first day on which a statement on objectives for the future relationship with the EU is approved by a resolution of the House of Commons on a motion moved by a Minister of the Crown, and(b) each subsequent period of three months;“statement on objectives for the future relationship with the EU” means a statement—(a) made in writing by a Minister of the Crown setting out proposed objectives of Her Majesty’s Government in negotiations on the future relationship with the EU, and(b) published in such manner as the Minister making it considers appropriate;“statement that political agreement has been reached” means a statement made in writing by a Minister of the Crown which—(a) states that, in the Minister’s opinion, an agreement in principle has been reached with the EU on a treaty the principal purpose of which is to deal with all or part of the future relationship with the EU, and(b) identifies a draft of that treaty which, in the Minister’s opinion, reflects the agreement in principle;“treaty” has the same meaning as in Part 2 of the Constitutional Reform and Governance Act 2010 (see section 25(1) and (2) of that Act).””Member’s explanatory statementThis amendment reinstates the oversight Clause from the original version of the Bill, providing an ongoing role for both Houses of Parliament during the future relationship negotiations.

Baroness Hayter of Kentish Town: My Lords, Amendment 27 stands in my name and that of the noble Lords, Lord Wallace, Lord Hannay and Lord Bowness. I will also speak to Amendment 28, which is in almost the same names, and Amendment 40, which was tabled by the noble Lord, Lord Wigley. These amendments would essentially reinstate what had been promised in the earlier Bill: proper parliamentary oversight of the Government’s negotiating mandate and the negotiations themselves. They would also ensure proper reporting back including, crucially, on whether a satisfactory deal looks probable before the cut-off date for any extension. This is especially relevant, perhaps, if the FT is correct that the Prime Minister himself is finally beginning to doubt that all can be done and dusted by the due date.
As the Bill stands, the European Parliament will have a much greater say over the stance of the EU negotiators than we will over ours. The Minister shakes his head. His knowledge of the European Parliament is certainly longer than mine, but I think he will find that it will have a rather greater grip than we will over what happens.
Our EU Committee expressed its concern about the omission of the old Clause 31 of the October Bill, without which Parliament will have no statutory role in respect of the future trade deal, save a very limited final nod under the CRaG—and even that can be disapplied by a Minister. We have agreed before in this House that Parliament should be involved throughout the process to ensure that, apart from anything else, the talks are not heading to the rocks of no deal. But that is presumably exactly why the Government do not want us to have a role.
Despite the commitments made at the Dispatch Box by the Government before the election, they have stripped those statutory rights from this Bill—all because they have a majority of 80. The Commons was told not to worry and that Parliament would of course have a meaningful role throughout the future relationship negotiations but, as that role has been deliberately dropped from the draft legislation, I am afraid that that assurance is simply not good enough. The removal of the original Clause 31 shows how the Prime Minister can change his mind; we are simply asking for the first version of his mind to be in the Bill. Amendment 27 reinstates the Government’s own words.
Amendment 28 is slightly different; it asks the Government to update MPs and us on progress in negotiations half way through the implementation period and requires a Minister—who of course cannot mislead the House—to give an assessment of whether a deal is likely before 31 December and, if it does not look likely, to outline the Government’s approach.
Amendment 40, tabled by the noble Lord, Lord Wigley, seeks the approval of both MPs and the devolved legislatures for the Government’s negotiating objectives—a goal that we clearly share.
The noble Lord, Lord Boswell, who is not in his place, said at Second Reading that
“scrutiny is not an optional extra.”—[Official Report, 13/1/20; col. 483.]
Amen to that. If the Government will not accept these amendments, they need to explain what exactly they are afraid of and why a Government, answerable to Parliament, are deliberately cutting elected MPs, as well as your Lordships’ House, out of any meaningful role. I beg to move.

Earl of Kinnoull: My Lords, I spoke at Second Reading about the dropping of Clause 31, which was in the October 2019 version of the Bill and is in Amendment 27, as the noble Baroness, Lady Hayter, has just said. I thought it would be helpful to have better detail about the position for MEPs, among other things. The position is set out in Article 218 of the Treaty on the Functioning of the European Union, which says:
“agreements between the Union and third countries or international organisations shall be negotiated and concluded in accordance with the following procedure.”
It runs through that procedure and says, in paragraph 10:
“The European Parliament shall be immediately and fully informed at all stages of the procedure.”
That is further backed up by the interinstitutional agreement between the European Parliament and the European Commission, which says in part III:
“Parliament shall be immediately and fully informed at all stages of the negotiation and conclusion of international agreements”.
That is at paragraph 23. It goes on:
“The information referred to in point 23 shall be provided to Parliament in sufficient time for it to be able to express its point of view if appropriate, and for the Commission to be able to take Parliament’s views as far as possible into account.”
As a European Union Committee member, I find that the extraordinary thing that one has been able to see with MEPs over the last four years is the way in which they have started using those powers to get a good grip on the scrutiny of the process that is Brexit.  The Brexit Steering Group, energetically chaired by Guy Verhofstadt—a regular on all our TV screens—is regarded as a deeply successful model. I have been told that by more than one Commissioner, by many officials within the Commission, by Guy Verhofstadt naturally, and by Michel Barnier. I have checked with various other members of the European Union Committee and they believe that to be the case. I have not checked with my noble friend Lord Kerr of Kinlochard; perhaps he will confirm his agreement. It really has been deeply successful, and the Commission members have found it good and have enjoyed the process.
There was evidence of that on Monday, when 45 pages of slides, entitled Internal EU27 preparatory discussions on the future relationship: “Free trade agreement” were published. They give a very detailed and interesting background about how the European Union is getting ready for the free trade agreement negotiations—and, boy, do I wish that we had access to a similar document, which I am sure exists, in preparation for our own negotiations.
I come back to what, in the summer of 2016, the then Secretary of State for Exiting the EU, David Davis, said to us in commenting on whether the UK Parliament would enjoy parity—that was the word we put to him—with the European Parliament during the withdrawal negotiations. He said:
“We will certainly match and, hopefully, improve on what the European Parliament sees.”
We took him at his word, and Amendment 27—which was in the previous Bill and was, after all, a government amendment—was a step in that direction. I am sure there would have been amendments to Clause 31 in that Bill as well. It seemed to me to respect an undertaking given to us by the then Secretary of State. I ask the Minister whether the Government are still behind those words said by David Davis to the European Union Committee and, if so, how they will ensure that they live up to those words.

Lord Wallace of Saltaire: My Lords, my name is also on Amendments 27 and 28, and I wish to add my support for them. The Constitution Committee’s report, published two days ago, says in paragraph 3:
“This Bill is of the highest constitutional significance.”
One of the many aspects of that constitutional significance is as it affects the relationship between Parliament and government. As I understand it, the role of Parliament and the role of the second Chamber of Parliament—the House of Lords—in legislation is that we should present reasoned arguments and criticisms of what the Government have put forward. In response, the Government’s duty is to listen to those arguments. Where they are persuaded that those arguments are reasoned, or where they are unable to provide reasonable answers to them, they should adjust the legislation to meet those arguments.
The other dimension is that, as policy proceeds, the Government should be held to account by Parliament; there should be ongoing accountability as policy proceeds. Amendment 27 does not say that we want to know the details of everything; it talks about objectives. The Government are asked to tell us regularly what their objectives are. That seems entirely reasonable, particularly  as the Government’s objectives remain so unclear and, in some ways, contradictory. On regulatory divergence, for example, I have listened to the noble Lord several times explaining the rationale for the regulatory divergence the Government are committed to and each time he explains it I become less and less convinced that the Government know what they want. I think that is partly because different elements of the Government and of the Conservative Party want entirely contradictory outcomes.
The question of the future security relationship also contains a number of unresolved internal differences. On future trade relations, we heard on the radio this morning someone with very close links to the Trump Administration saying that if we want good trade concessions in our future relations with the United States, we had better give something in return on Iran and our policy on the Middle East. There are many questions there that it is reasonable for Parliament to hold the Government to account over, and to ask Ministers to continue to justify.
The noble Baroness, Lady Noakes, in what I thought was rather an odd speech, said that we should not bother Ministers when they are in the middle of negotiations, because they will be tired and busy and we would get in the way. That seems to me, if I may say so in her absence, absurd. Parliaments are there to hold Governments to account and if the Government think they can get away without being held to account, except every five years in elections, we have moved away from constitutional and parliamentary democracy.
We heard a number of empty threats on Monday about the future of the Lords if we were to pass any amendments. There were suggestions that we were standing in the way of the people’s will and that various Members of this House perhaps represent the people against Parliament—although some of the Members of this House who put themselves forward as representing the people seem rather less popular in their backgrounds than one might otherwise expect. All I say to that is that if one faces up to the question of Lords reform—I say this as a former Minister responsible for trying to take through Lords reform—it is very difficult.
Some of us were at a meeting this morning where it was said that Lords reform and electoral reform were the two most difficult constitutional changes that anyone would wish to take through. It was implied that neither would happen in our lifetimes. That may be a bit of an exaggeration, but there is an idea that somehow, with the Express and the Mail behind the Government, threats can be made that the Lords will be abolished—and with Rebecca Long Bailey behind the Express and the Mail in threatening it. The idea that that will happen and we will all then turn quiet is out of the question. We have to do our job. We are here as a revising Chamber and it is our duty to ask the Government to revise when we are not convinced.
There is a question that all Conservatives here should ask themselves carefully as they consider how the House considers the Bill: if a non-Conservative Government were attempting to push through a Bill of this sort, which diminishes the role of Parliament in holding the Government to account, what would the  Conservative response be? I think I know. I therefore strongly support this amendment and I hope the Government will recognise that, in rejecting it, they are trying to push the relationship between Parliament and Government towards the Executive and away from proper constitutional democracy.

Lord Hamilton of Epsom: My Lords, to respond to the noble Lord, Lord Wallace of Saltaire, on Lords reform, I remind him that your Lordships’ House was not saved by anybody in this House. It was actually saved by Jesse Norman—who paid a serious price from David Cameron, who subsequently refused to put him into his Government—and a number of right-wingers in the Tory party. We do not have that support in the Commons any longer, so I would not be quite so laid back and complacent about the future of your Lordships’ House. It has been seriously threatened and bruises have been left.
As to the amendment, I think we have all very much welcomed the election of Sir Lindsay Hoyle as Speaker of the House of Commons. I think he will be an umpire rather than a protagonist in the Brexit debate; he certainly has not indicated which way he voted in the referendum. However, the suggestion that he will not allow any Statements or Urgent Questions on the Brexit negotiations in the year that extends before us is for the birds. The idea that the Government will have no accountability to the House of Commons—or to your Lordships’ House—on how the negotiations are progressing is just ridiculous. For that reason, it is completely unnecessary to have this stuff in the Bill; I think there will be a lot of accountability, which will be ensured by the new Speaker. There is no point whatever in putting it in the Bill.

Lord Wallace of Saltaire: My Lords, I assure the noble Lord that I am strongly in favour of reforming the House of Lords. I hoped when I was appointed to this House that I would in due course become an elected member for the Yorkshire region. I have now been in this House for 23 years and that has not happened. I am very conscious of the difficulties of reform.

Lord Hamilton of Epsom: Yes, and the noble Lord should be very pleased with himself that he has done much to make the idea of reforming our House a significant factor, now that there is a Conservative Government with a serious majority.

Lord Hannay of Chiswick: My Lords, as one of those who sponsored this amendment, I will make a few brief points. Its subject matter is very familiar to Members of this House, because we went over all this ground during the Trade Bill last year. We sent to the Commons an amendment that had very similar effects to this one, only this one is in the different context of negotiating the new relationship with the EU, and it has remained there untreated ever since. However, the view of the House was expressed by a very large majority, with support from all corners of the Chamber.
This negotiation with the EU, which will go far beyond purely the trade area, must do so because, if we allow the non-trading goods areas that are at  stake—I will not list them, as it is a very long list—to go over a cliff at the end of this year, when we have only a trade agreement, that would be pretty disastrous. It is a very important and wide negotiation, and it is perfectly reasonable to try to set bounds to the rules of the road in legislation about how the Government will relate to both Houses of Parliament during its course. I do not think there is anything unreasonable in this.
Moreover, as my noble friend Lord Kinnoull pointed out, drawing attention to the European Parliament’s position, which is completely different, it would be pretty anomalous if this Parliament, which is meant to be taking back power, had much less influence over this negotiation than the European Parliament. That is not a very happy situation; it was one that existed during all the negotiations of the last few years and did not turn out terribly well. I do not quite understand why the Government are fearful of subjecting themselves to this fairly reasonable amount of oversight and mandating when they have a very large majority in the other place, which will of course prevail in support of the Government’s views on how the negotiations should be conducted.
Yet they tabled the text that we now have before us when they could not be sure of that at all. That is a bit odd as well; I think I can understand perfectly well why it has happened, but it is still odd. This is not only about the European Parliament. For example, one of the major trade negotiations not covered by the Bill will be with the United States, where Congress will play a far greater role than the one that the Government envisage for this Parliament. That is also pretty unhealthy.
I went to a briefing meeting held by the noble Lord, Lord Callanan. I am most grateful to him for it; he has been extremely assiduous in briefing us on the Bill. In reply to a question on this issue, he said, “That doesn’t matter much because we’re just going back to what existed before.” I am not sure that “back to the future” is this Government’s motto, but it is nevertheless worth remembering that when he says that we will go back to what was there before, he means what was there 50 years ago. Neither this Government nor any British Government have conducted a trade negotiation for 50 years. To suggest that the world has not moved on in the oversight and mandating of trade negotiations is simply to close your eyes to reality. So I really think that there is a case for this amendment.
Finally, I can at least take comfort from the fact that the Minister will not be able to rise to his feet and tell us how badly drafted the proposal is because he drafted it himself.

Lord Liddle: My Lords, I support the amendment moved by my noble friend Lady Hayter. I particularly support the speech of the noble Earl, Lord Kinnoull. He is already establishing himself in this House as an excellent chair of the EU Select Committee, succeeding a previous excellent chair. My only regret is that I am no longer on that committee to serve under his chairmanship.
In my experience from my four years on the committee, the attitude of successive Secretaries of State towards the committee was always one of good will but they  made promises they never kept. At one stage, we were told, “Oh yes, every month you’ll see me and I’ll come to answer your questions.” My recollection is that we saw David Davis at intervals of perhaps five months during his time as Secretary of State. I think that we saw Mr Raab once; I might be wrong about that. Mr Barclay was the most attentive towards the committee. He seemed keen to improve in the next phase of the EU negotiations on his own degree of accountability. He saw maximum transparency in the conduct of the negotiations as being in the Government’s interests. I am sorry that No. 10 has decided to go for breach of promise on all this. That is a great shame.
Whenever the issue of the European Parliament’s rights to scrutiny is raised, you get a vigorous shaking of the head from the Minister, the noble Lord, Lord Callanan. I would love to hear his explanation of why those rights are not what we all know them to be. He seems to reject the notion that the European Parliament has many more rights than the British Parliament to access information and question officials to find out what is happening, but that is the case. The role of the European Parliament was greatly strengthened by the Lisbon treaty, and again by the ECJ judgment to make it easier for the Commission to negotiate on the EU’s behalf on services as well as on goods. It has also been strengthened by the brouhaha over the Canada agreement; a stronger role for Parliament clearly would have prevented the difficulties that the agreement then ran into in its ratification in member states. I think it is in the Government’s interests to be more transparent.
Yes, Brexit is happening—as I said in my Second Reading speech, I fully accept that—but the Government do not yet realise what trade negotiations are really like, because they have not done them for half a century. Having served for three years in DG Trade, or at least in the cabinet of the Commissioner, I can tell you that they are brutal. The people in charge of the EU side in these negotiations stand up for EU interests with tremendous firmness. I suspect that this is what we will encounter once we have allowed ourselves to become a third country, which in a few weeks we will be. They will treat us like any other third country.
One has to be transparent about the trade-offs. I will cite just one example. How do we rate the relative importance of the fishing and car industries? The fishing industry has tremendous political profile and thinks that as a result of Brexit it will get much more fishing in British waters and that we can keep continental boats out—but it represents 0.5% of GDP. How much are we prepared to sacrifice in our negotiating position for the fishing industry? The car industry employs up to 1 million people in this country, when you look at the supply chain. If we do not achieve the kind of customs partnership that Mrs May said she was in favour of, there is a real risk that inward investment by the overseas companies that rebuilt the car industry in Britain will go elsewhere over time. There has already been a lot of talk of that on their part. This would be a devastating blow to one of Margaret Thatcher’s main achievements in the 1980s and 1990s in being able, as a result of creating the single market, to attract to Britain huge amounts of foreign investment, which has greatly benefited our people. I repeat: 1 million jobs.
If there is not transparency, how do the Government explain to people that they are not guaranteeing the future of 1 million jobs but have put all their negotiating eggs in the basket of trying to give a few more opportunities—not actually saving any jobs—to our fishing? We need openness if we are to have a proper debate in this country about where our interests lie. That is what we need in the coming 12 months if we are to have any hope of a harmonious outcome to these rushed negotiations.

Viscount Trenchard: My Lords, I will comment on the views of the noble Lord, Lord Liddle, about the European Parliament and the relative degrees of parliamentary scrutiny. He has much more experience of Brussels; I have worked there, but not for nearly as long as he did. It is not correct to say that the European Parliament’s rights in this matter are greater than the United Kingdom Parliament’s. Article 218 of the Treaty on the Functioning of the European Union states that the European Parliament must be kept
“immediately and fully informed at all stages of the procedure”,
but does not give it a role in deciding the substance of the negotiations. However, it must pass the final agreement by a simple majority vote. So it has to agree at the end, but it appears not to have the right, stage by stage, to dictate to the Government what they are to do as they negotiate.

Lord Liddle: I never claimed that. I claimed that the Parliament was so fully informed that it had a grasp of the trade-offs that it would have to make in deciding whether to vote for this deal at the end of the day.

Viscount Trenchard: As far as I understood, the noble Lord said that the European Parliament had much more say in dictating the mandate, but perhaps I misunderstood him. In any case, it appears that during the last three years the UK Parliament has been exercising power to control the Executive, and the Executive have not been seen by their interlocuters on the European side as having the right to negotiate, because all the time noble Lords opposite, and others, were saying to individuals in Brussels, “Don’t worry, Parliament isn’t going to allow the negotiating team to do this. We will reverse it.” Now the people have spoken and the House of Commons has a strong majority of 80 Conservative MPs, all committed to a real Brexit. That is known. This amendment is designed to obstruct because the House of Commons will not accept it, and noble Lords know this well.

Lord Wigley: My Lords, I very much agree with the points made a moment ago by the noble Lord, Lord Liddle. In Wales during the 1970s, 1980s and 1990s, we were fortunate enough to attract more than 200 American companies and more than 50 Japanese companies to invest in Wales, largely through the work of the Welsh Development Agency. They came to Wales in order to sell to the European market: there is no question about that, and therefore these questions are of mainstream importance to the National Assembly for Wales. That is why Amendment 40, standing in my name, covers the matters involved in Amendment 27 and brings into the loop a role for the National  Assembly for Wales, the Scottish Parliament and the Northern Ireland Assembly. I concur very much with the points made by the noble Baroness, Lady Hayter, in opening this debate.
Amendment 27 provides, in subsection (4) of the proposed section entitled, “Negotiations for future relationship,” that:
“A Minister of the Crown may not engage in negotiations on the future relationship with the EU unless … a statement on objectives for the future relationship with the EU has been approved by the House of Commons.”
My Amendment 40 extends the same principle to the National Assembly for Wales, the Scottish Parliament and the Northern Ireland Assembly.
The lead Amendment 27 does indeed bring in the three devolved legislatures, to the extent that it provides that copies of the proposed progress reports should be provided for each devolved legislature, and to the relevant Ministers of those three nations. The general arguments in favour of my amendment are similar to those for Amendment 27, so I will not repeat them. I support everything stated by the noble Baroness, Lady Hayter. However, I will again press that the devolved legislatures should be fully in the loop and that their approval should be obtained. They have as valid a right to be in the picture as Members of the European Parliament; it impacts directly on their work.
I realise that the Government may withstand the whole concept of getting prior parliamentary approval for their negotiating position with regard, say, to trade in sheepmeat, but they contend that the Government can negotiate exactly what they like, and they have it in their power to do so. In reaching their negotiating position and their proposals, they will no doubt have discussed their strategic objectives with their ministerial colleagues in charge of sheepmeat issues in England. It would be amazing if they were not to do so; indeed, it would be a chronic dereliction of duty. But, unless a provision along the lines of Amendment 40 is brought into play, the government team in charge of negotiating with the EU on the future sheepmeat trade will be totally ignorant of the views of Wales, Scotland and Northern Ireland. These need to be systematically built in.
Agriculture is a devolved subject. The Government have repeatedly stressed that they are not in for a power grab and are not going to reverse the devolution of power. If that is so, the UK negotiating team must surely be duty bound to take into account the views of the National Assembly and the relevant Welsh Minister on a subject of such overwhelming significance to Wales as the future trade in sheepmeat.
This issue brings into sharp focus the question of co-operation and mutual respect between the UK Government and the devolved legislatures. A failure to take this on board and to make the necessary provision to answer it will only reinforce the growing feeling in Wales, as in Scotland, that the UK Government are basically the Government of England, and that it will be the needs of England that dominate the negotiations with the EU on our future trade relationship with Europe.

Lord Bowness: My Lords, I support the amendment. I would adopt many of the arguments put forward by my co-sponsors, and I shall not repeat them. I put my name to it because I believe, perhaps naively, that it ought to be self-evident that Parliament should have a particular and special role in holding the Government to account during the vital negotiations that will determine the United Kingdom’s future relationship with the European Union. The pledge to establish a free trade agreement tells us little or nothing about this. I raised a number of questions at Second Reading, which I will not repeat because I got no answers to them then, and I would not anticipate an answer this afternoon.
I emphasise that the amendment does not attempt to delay or stop Brexit; it would not even delay the passing of the Bill in time for 31 January. As for my noble friend’s reliance on Select Committees, Questions and debates, I submit that those are no substitute for a formal recognition of the special circumstances of the negotiations we are about to enter.
The parliaments of Denmark and Sweden, to name but two—

Lord Hamilton of Epsom: Surely all that can possibly happen in the House of Commons is that the Government make Statements on their position in the negotiations with the EU. That will happen anyway, if the Speaker allows it. How would putting it into the Bill make the slightest difference?

Lord Bowness: It would impose an obligation. I bow to my noble friend’s knowledge of the workings of the House of Commons, but it seems to me that there is probably a very compliant majority at present, so we need safeguards in the legislation.

Lord Hamilton of Epsom: The majority in the House of Commons only counts if there is a vote. There are no votes on Statements.

Lord Bowness: That still does not seem to me to obviate the need for full information to be given to both Houses of Parliament. I suspect that my noble friend is implicitly accusing me of trying to delay the Bill or to stop Brexit, rather than being concerned about the future of our relationship. I refute that allegation, but I entirely accept that I remain very concerned about our future position.
I apologise for hesitating slightly here, but my noble friend has rather thrown me—which was, no doubt, his intention. I appeal to my noble friends on the Front Bench to recognise that we all accept that we are leaving, but that some of us want to ensure that we retain as many as possible of the benefits of 40 years, and that they are not all lost just to satisfy the ideology of a clean and absolute Brexit. Those of us who think that way may be in a minority, but we are a substantial minority.
I apologise to my co-signatories to this amendment for my following comments. They are not intended to undermine the amendment or the arguments that they have put forward but I accept that the amendment was drafted at a different time, in different circumstances, and is very long. Arguing from my position, I ask the  Government—it may be a vain hope—to give serious consideration to discussing whether there may be a simplified formula in the Bill which people such as I—and they—might find it possible to accept. It would be a gesture of good will to those of us who are not ideological Brexiteers. At the moment that good will is in pretty short supply and I hope that we might see it. I certainly hope that it will break out during the negotiation period.
It may be a vain hope but it is a serious suggestion that we endeavour to find a clause which would be acceptable to those of us with differing points of view across this House.

Lord Howarth of Newport: My Lords, I say to the noble Lord, Lord Bowness, that I have nothing but good will towards him despite our profound disagreements on Brexit.
It has been a pleasure for me in our Committee proceedings up until now to be able to support my noble friend Lady Hayter but, sadly, at this point I have to part company with her. I cannot agree with her or my very good friend the noble Lord, Lord Wigley, that their new clauses are appropriate. They are in effect seeking to substitute the House of Commons for the Government. Under their proposals, the House of Commons would give the Government their marching orders as they move into these negotiations and the Government would be expected to act as an agent of the House of Commons. That is constitutionally inappropriate and will not work well in practice. We saw in the last Parliament the damage done to our national endeavour by the insistence of the House of Commons that it must take charge of the process of negotiation. It was a disaster for us.
When it comes to setting objectives, there is no alternative but to trust the Government. The Government will have to make judgments as they negotiate and the objectives they set for themselves at the beginning may well have to be modified in the light of their assessment of what may be achievable.
I do not think that the analogy the noble Earl, Lord Kinnoull, suggested between the procedures and powers of the European Parliament and the way for us to proceed in our system of parliamentary government is appropriate either.
Openness—the transparency that my noble friend Lord Liddle was calling for—may be difficult, if not inappropriate, in the circumstances of a complex, lengthy and difficult negotiation in which it may not be prudent for the Government to make public what they are thinking of doing and the ways in which they intend to set about it. As the noble Lord, Lord Hamilton of Epsom, reminded us, the House of Commons and your Lordships’ House will have ample opportunities to express their views and to hold the Government to account, not least through the work of the Select Committees of your Lordships’ House.
I support the intention of the noble Lord, Lord Wigley, that the Government should be expected to maintain a full and constructive dialogue and full consultation with the devolved Administrations. We debated that principle yesterday and again in our first debate this morning.
It is very important not only for the benefit of our union—fragile as it is at the moment—but for reasons of practicality and of ensuring that outcome of negotiations makes realistic sense in terms of the situation in Wales, Scotland and Northern Ireland. I would not go as far as the noble Lord, Lord Wigley, or be as prescriptive as him, although I note there is a certain vagueness in the way he has formulated his paragraphs on the requirement for consultation. I think he takes it a bit too far, for the reasons I have given.
There may well be moments in the process of negotiation when the Government consider that it would be helpful and in our interests that they should lay out their position very fully to the House of Commons and seek its endorsement, but that needs to be a tactical judgment in the light of the way events develop. I do not think it is wise for us to seek to tie the Government’s hand and inhibit their freedom in conducting these negotiations as best they can in the interests of our country.

Lord Kerr of Kinlochard: The noble Lord, Lord Howarth, finds the amendment positively undesirable. I think it is quite difficult for the Government to argue their case, since the amendment merely reinstates what was in their October version of the Bill, so in October the Government must have thought this perfectly workable and not subject to the objections raised by the noble Lord, Lord Howarth, who obviously thinks that the Government were a bit soft then.

Lord Howarth of Newport: It was desperate expedient. The Government had no option, given the parliamentary arithmetic.

Lord Kerr of Kinlochard: That is the point I wanted to touch on. I thank the noble Lord. I have gone through the Conservative manifesto very carefully and I cannot find any commitment not to keep Parliament fully consulted on the process of the negotiation. It seems to me that we are not in serious Salisbury convention territory here.
The substantive arguments against this amendment, rather than the politically cynical argument against it advanced by the noble Lord, Lord Howarth, is that it weakens the Government’s hand in negotiation. I know from my past career that that is completely untrue. It is the reverse of the truth. I spent quite a long time unsuccessfully trying to negotiate air services liberalisation with the United States. The arguments for it were easy. Even I could win the argument, but I could get nowhere because of the power of parliament used as a negotiating weapon by American negotiators: the power of the Senate to refuse. When you win the argument with the American, he says, “You make a very good point, but we’d never get it through on the Hill.” I do not believe that Parliament as the Wizard of Oz would be a terrible threat to the Government, provided they had explained what they were trying to do. I know that being obliged to keep Parliament informed is an extremely good weapon in the negotiator’s hand.
I come back to a more general point, which has been made many times in these debates by the noble Lord, Lord Bridges, and which was made by the noble  Lord, Lord Barwell, in his remarkable maiden speech which we all greatly admired. Honesty—not pretending that you can have it all and admitting that there are trade-offs to be had—goes with transparency, and it seems to me that this perfectly reasonable means of ensuring a degree of transparency to Parliament, which was perfectly reasonable and acceptable to the Government in October, would be consistent with trying to bring public opinion to understand some of the difficulties and trade-offs that lie ahead in the negotiation.

Lord Howarth of Newport: Can I put it to the noble Lord that he was not actually arguing to what this amendment provides? He was arguing for transparency and for negotiators to be able to use in their negotiation the tactic of saying, “We’ll never get it through Parliament”, or, “We’ll never get it through Congress”, but that is different from what this amendment prescribes, which is that the objectives which the Government would have in their negotiation must have been approved by the House of Commons at the outset. That is a different proposition.

Lord Kerr of Kinlochard: Given the majority in the House of Commons, it is not a terribly high hurdle. In a way, this is an obscure debate as we know what the answer is going to be—the Government can get their way in the House of Commons. It is odd for the Government not to want to strengthen their negotiating hand by having a procedure of this kind—or a simplified version, as the noble Lord, Lord Bowness, hinted at. To have something like that would strengthen their hand and provide them the means of ensuring that the country is brought along to understand the trade-offs that will have to follow.

Lord Wilson of Dinton: My Lords, I am pleased to follow my noble friend Lord Kerr.
This is all about power. The Government are in powerful position at the moment. I say “at the moment”, because it will not last. We know that the pendulum swings, and that power is fluid and leaks away. The arguments for the amendment are good, but I am more concerned about good government. My experience is that Governments, when they are at their most powerful, are in a kind of vacuum, and this is a time when mistakes are made. This is the year when the Government will plant the seeds of their own failure, and I am in awe of their task over the next year.
I date back from the time when we did trade negotiations ourselves. I was a gofer in the Board of Trade on the Kennedy Round. I was in charge of knitting needles, aspirin and canned fruit at various times. I was also Private Secretary to the then Minister for Trade, the late Lord Brown of Machrihanish. I am familiar with trade negotiations from that earlier period, and I can confirm that the noble Lord, Lord Liddle, is right: trade negotiations do not bring out the nice side of other people; they bring out the tough, rigorous side.
Although the Government are powerful in this House, and in politics, they are not necessarily going to be strong in the negotiating room. They need the  support of Parliament, and they need friends. They will have more friends if they consult and if they are open, because the analysis needed for trade negotiations —on services and the other areas that are so important to this country—will involve groups of people, Scotland and Wales, and sectors. The Government need to be open and use their power with maturity. They need experience, they need to be open, they need to recruit friends and heal. The trouble is that the bruises are too recent, which colours some of these exchanges.
The Government must work with Parliament, with noble Lords, and be open to understanding the hugely different currents and flows that will underlie these negotiations. If they think they know all the answers and can ignore the sovereignty of the Queen in Parliament, and just be the Crown, they will make some awful mistakes and the country will suffer for them. I urge the Minister to take these amendments, and the arguments that lie behind them, seriously.

Lord Hamilton of Epsom: Is the noble Lord arguing that there will be no reporting by the Government to Parliament on the negotiations if this is not in the Bill?

Lord Wilson of Dinton: I am not arguing that. I am worried that the Government’s powerful position, and their glee and joy, which is understandable, will lead them to a certain arrogance and to ignore the role which Parliament can properly play. These amendments are a good reminder of the role that Parliament must play. I urge the Government to work with Parliament, with noble Lords and with influences that can be brought to bear behind the scenes, to listen and not to think that they know all the answers and can just go in and negotiate, because they cannot.

Baroness Finlay of Llandaff: My Lords, I should like to briefly follow that very powerful speech by my noble friend Lord Wilson of Dinton. The spirit of the amendment tabled by the noble Lord, Lord Wigley, is about consultation. It is about making sure that people behind the scenes know what is happening and can understand if they have to give something up rather than it being delivered on them.
The Senedd, the National Assembly of Wales, has responsibility for a set of devolved competences. When negotiations become difficult and tough, it is almost inevitable that at times people will have to give things up. If people in Wales, behind the scenes, know what is happening and understand why, they can support it. If something is just delivered on them as a fait accompli afterwards, trust is lost. There is a Chinese saying that I think we should remember: trust arrives on foot and leaves on horseback—and it is trustworthiness in behaviour that wins trust.
The Joint Ministerial Committee on EU Negotiations was set up with promises by the Government to seek consensus over approaches behind the scenes—yet, sadly, I understand that sometimes the committee had no more information than could be found in the previous day’s newspapers. Sometimes those attending were told that they could not be told more because it was not in the public domain. If there is a small group of people whom you are taking into your confidence and you trust them to observe that confidence, it is not  helpful for them to be told, “You can’t be told what’s going on because it isn’t in the public domain”—because the role of that group is to share that confidential information and thinking before the next round of negotiations.
The spirit of the amendment tabled by the noble Lord, Lord Wigley, completely encapsulates a need: where devolved competences are at stake and will be deeply constitutionally affected, it is only right that the devolved Administrations are involved and that their thinking is sought early on, so that they can explain it both to their own legislatures and to the people who voted them into office.

Baroness Jones of Moulsecoomb: My Lords, I support Amendments 27 and 28, and I would have put my name to Amendment 40 had I seen it before the deadline. This is a sad day for me, not just because these amendments are necessary but because today I have disagreed very strongly with the noble Lord, Lord Howarth. We have sat together companionably for six years. He is like a human form of Wikipedia. He knows everything that there is to know about all noble Lords and this saves me from having to use my phone.
Returning to the amendments, I hope that Hansard has a copy and paste function, because, quite honestly, we have been over this time and again. Noble Lords have said the same things to the Government again and again, and at one point it seemed to have sunk in, because the European Union (Withdrawal Agreement) Bill last year contained a whole load of provision for parliamentary scrutiny. I know that the Minister will reply to us with his tried and tested lines that we have heard before—but, quite honestly, that is not enough. The election has changed things and now the Government have gutted the agreement Bill of all scrutiny. I say to the Minister that, just because his Government now have a majority in the other place, that does not make them right or mean that this is the right thing to do. It does not make them immune from parliamentary scrutiny. Our job is to hold the Government to account, and if they scrap us—well, actually, I have been trying to abolish the House of Lords for six years and it has not worked so far.
Is it not obvious that a lack of parliamentary engagement—a failure to bring the majority on board—is what led to the parliamentary deadlock when the final deal was secured? Instead of working with Parliament, the Government told us that there would be no running commentary and that the sharing of details would undermine the negotiations and so on. Scrutiny was deferred until the very last stages of the negotiations when, instead of it being a mere inconvenience, it culminated in a crescendo of chaos. Had the Government engaged constructively with Parliament, things could have turned out very differently. However, despite all those lessons, the Government are, once again, trying to sideline Parliament.
Over the coming weeks and months, much will be made of the Salisbury convention and the extent to which this House should exercise its powers and functions to scrutinise, correct and improve. My stomach slightly turned over when the noble Lord, Lord Howarth, said that we had to trust the Government. Well, actually, no,  we do not. It is our job to trust when it is appropriate to trust and to distrust when we can see that they are going wrong. When the Government try to shut down scrutiny in the way they have with this amended Bill, it leaves this House with no choice but to exercise its constitutional might as far as that extends. The last stage of the negotiations was the easy bit. It is the next stage that is going to set out all our future concerns. That negotiation must be got right, and this sovereign Parliament absolutely must play its role in securing that for the national interest.

Bishop of Leeds: My Lords, I think that the context has changed. When the Benn amendment went through, it was suspected of having the intention to thwart or delay Brexit. We are not in that position now: Brexit is going to go ahead. Surely, then, it is the job of the whole of Parliament to defend and promote its own interests and those of the Government in the negotiations going forward. So, in a perverse way, this amendment strengthens the hand of the Government by bringing in Parliament to back it and provide support as they embark on their negotiations; it does not diminish it.

Baroness Wheatcroft: My Lords, I wish to support Amendment 27, and at this stage in proceedings I will be brief. I found it endearing when the noble Lord, Lord Howarth, said that we must place our trust in the Government. I tend more to side with the noble Lord, Lord Wilson of Dinton, on this. The Government have made it very clear that their version of taking back control is to do their best to shut out Parliament as far as possible. We need only to look at the illegal attempt to prorogue Parliament to see that in action. Why, if they were very keen for us to be involved in the trade negotiations, would they go to the trouble of taking out of the Bill the clause that would have given us that involvement? It might be right—as the noble Lord, Lord Hamilton, said—that we should put our faith in the Speaker of the Commons. But, again, why should we do that when we could have the safety of having our own involvement on the face of the Bill?
My second point is quite straightforward. I find it embarrassing when this House is threatened that trying to do its job will result in a potential threat to its survival. We have a very simple role: it is scrutiny—not to thwart the will of the Commons but to ensure that we improve legislation. We can improve this piece of legislation. We should do that, and if we do not have the courage to do that because we are worried about our own survival, we do not deserve to survive.

Lord Butler of Brockwell: My Lords, I am going to make a rather cynical contribution to the debate. The debate has brought out very clearly the difference between accountability and a mandate. I am not in favour of the Government’s hands being tied by Parliament in these negotiations. I agree with the noble Lord, Lord Howarth, that it is for the Government to conduct these negotiations, not for Parliament. We will have the opportunity to comment and to give our views, and we should. We certainly should not be cowed from doing that.
However, I will quote a recent example that I really think establishes this point. The Government unexpectedly, before the election, got an agreement with the European Union that the European Union always said that it would not make. How did they get it? They did it by making a concession on the Irish Sea that they would never have got through Parliament. They made a concession which they had said they would not make—but they found it necessary to do it, and when they had done it, Parliament and the electorate came to the conclusion that it was the right thing to have done. If Parliament had been able to control what the Government were able to do, the Government would not have been able to make that concession.
We might be cynical about that concession—we might think it was the wrong thing to do—but it was the thing that got the agreement and that was necessary to get the agreement. Certainly, the Government will need friends in these negotiations, but they will also need flexibility, and Parliament should not seek to take away that flexibility.

Lord Mackay of Clashfern: I would like to point out two matters. First, in new Clause 13D(2)(b) and (c) in Amendment 28, there is the requirement that a Minister must provide
“a declaration of whether, in the Minister’s opinion, agreements can be concluded and ratified before IP completion day”,
which seems to be in the nature of a prophecy required from the Minister as a matter of compulsion, and
“the policy of Her Majesty’s Government if agreements are not concluded and ratified before IP completion day.”
Once again, that is nothing to do with saying what is happening; it is giving an opinion as to what is to happen next, which as far as I am concerned is the difference between the two.
Secondly, in Amendment 40 tabled by the noble Lord, Lord Wigley, which is commended to be in very good form by my noble colleague, one of the requirements is that
“A Minister of the Crown may not engage in negotiations on the future relationship with the EU”
unless a statement of objectives has been made and the Motion relating to that statement has been approved by resolutions of the various devolved Parliaments, including the Scottish Parliament. I just wonder whether that is wise.

Lord Callanan: Amendments 27 and 28 in the name of the noble Baroness, Lady Hayter, and Amendment 40 in the name of the noble Lord, Lord Wigley, would all introduce new clauses with a similar purpose. They seek to create statutory roles for Parliament, the devolved Administrations and the devolved legislature in overseeing the future relationship negotiations. It is the view of the Government that the general election has shown that the public support the vision of the political declaration for a comprehensive and ambitious free trade agreement with the EU, and indeed this gives us the mandate to begin negotiations.
As this House will be aware, under the Royal Prerogative the negotiation and making of international trade agreements is a function of the Executive, as  indeed in the EU it is a function of the European Commission, a point well emphasised by the noble Lord, Lord Howarth. This enables the UK to speak with a single voice in negotiations and ensures—

Lord Bowness: Just in the interests of clarity, is it not true that the European Commission acts on a mandate from the Council—that is, the elected heads of government?

Lord Callanan: Yes, it is. I am not quite sure what point the noble Lord is making. It usually acts on a mandate although it is not clear to what extent or what detail will be provided in that mandate.

Lord Hannay of Chiswick: If I can help the Minister, the point that my friend the noble Lord, Lord Bowness, was making is that the Minister said it was in the hands of the Commission. He has now said that it is in the hands of the Council, which is correct.

Lord Callanan: As the noble Lord is well aware, it is the role of the Commission to do the negotiating. It will report back to the Council and the Council will provide steers on how it will do that, but the detailed negotiation is a matter for the European Commission.

Lord Liddle: There is a meeting every fortnight of officials from member states that monitors what the European Commission is doing.

Lord Callanan: There is not a direct analogy between the position of the UK and that of the EU. The UK is one member state and the EU is 28—shortly to become 27—member states. My point is that this enables the UK to speak with a single voice in negotiations and ensures that partners can have faith that the Government’s position is the position of the United Kingdom.
It goes without saying that the Government will of course support Parliament in fulfilling its important role in scrutinising the actions of the UK Government in the negotiations. Both Houses will have all the usual arrangements for scrutinising the actions of the Government. I find incredible the statements that have been made about how little a role Parliament will have to play in these negotiations. This House alone has spent over 650 hours on debates on EU-exit-related themes since the 2016 referendum—believe me, from my point of view sitting on the Front Benches, it has sometimes seemed even longer. I find it difficult to believe that noble Lords will not want to question and interrogate me or whichever other Minister is in my place at the time on these negotiations. Indeed, committees of this House have already published three reports on this Bill after fewer than 10 sitting days of this Session.
Let me address the points made by the noble Earl, Lord Kinnoull, and the noble Lord, Lord Liddle, on the role of the European Parliament and the famous Article 218. The noble Baroness, Lady Ludford, is sadly not in her place but we have served in the European Parliament and know the reality of these matters. It is important not to draw unhelpful comparisons between the Commission which, as I said, negotiates on behalf of the 27 member states, and the UK Government on how negotiations are conducted. The information provided  by the Commission to the European Parliament is carefully calibrated to not put the EU at a disadvantage in the negotiations. The detail of what information shall be provided to the Parliament is left entirely to the discretion of the European Commission.
The European Parliament will, as this Parliament often does, try to insert itself into the negotiations and want to influence their conduct through its various committees and organs. That is entirely right. It happens in the European Union and I suspect it will happen in this country as well. However, we need to be careful not to overstate what Article 218 does. It is not specific on reporting requirements and that compares very well with the Prime Minister’s commitment to keep Parliament fully informed about the progress of these negotiations. Article 218 does not specify what documents will be available or when.
Of course, it also bears saying that this Bill is not the final word on engagement between Parliament and the Government. As I indicated to the noble Earl, Lord Kinnoull, when we met and as I have said a number of times, the Government will want to start a process of discussions with Parliament into exactly how the various committees and organs in both Houses will scrutinise the work of the Government in this area. In our view, there is no need to set out bespoke statutory reporting requirements in the Bill or impose a statutory duty on a Minister to provide public commentary on the likely outcome of confidential negotiations at a fixed point, as was proposed in Amendment 28. In our view, this risks seriously disadvantaging negotiators acting for the United Kingdom.
I also note that setting out requirements of this type in legislation might well not have the desired effect, as an attempt to pre-empt outcomes and timings can be easily overtaken by events. Let me give the House an example. Last week, I delivered an update in this House on the Government’s negotiations and on Article 50, as required by Section 13 of the European Union (Withdrawal) Act 2018 and the Benn Act which many Members in this House spent many hours telling us was essential. For that debate, which took place at 10.30 in the evening, virtually the only people in the House to debate these matters were myself and the noble Baronesses, Lady Ludford and Lady Hayter. Many of the Members who insisted on passing the Benn Act and introducing these statutory reporting requirements did not trouble themselves to come along and take advantage of the legislation they had passed. There were only three speakers in that debate, myself and the two noble Baronesses.

Baroness Hayter of Kentish Town: Does the Minister agree that he did not actually cover the negotiations but covered only why that requirement was no longer needed? He did not touch on the negotiations at all.

Lord Callanan: The noble Baroness makes my point very well. The reason why I did not was because there had been no further negotiations since that legislation was passed. There was nothing to update the House on. It illustrates the point that it is bad legislation, and bad to set out these precise timetables in legislation. There needs to be flexibility on behalf of the Government and of course on behalf of Parliament. Of course, the  changes to domestic law required by the future relationship treaty will require legislation for their implementation. This will mean, of course, that Parliament will have its say, just as it is having its say on this Bill and on the amendments. It should be noted that the key powers provided by these clauses would be given to the House of Commons. Last Wednesday, MPs rejected a similar power in an amendment in Committee by 344 votes to 255. Noble Lords are welcome to ask the other place to think again about what powers it should have, but I am confident of what its response will be.

Earl of Kinnoull: I am sorry to interrupt the Minister. I should have said a big “thank you” for the time he spent with me on this topic in his cosy office. I am afraid that there will be a bit more time spent as well. I was very keen that he cover two things. First, he covered his view of Article 218, but he did not go at all into the interinstitutional agreement, which really expands, quite dramatically—I read it out—on what the European Parliament receives automatically. It is not having to ask for it—it receives it automatically, which is quite a big difference. Nor did he comment at all on what David Davis had said to us about parity of information, which is a different point in fact than that made by the amendment. I was really asking the Minister to comment about whether the parity of information pledge made by the then Secretary of State in the summer of 2016 was still current.

Lord Callanan: I did not cover that specifically. The noble Lord quoted the document—I have it in front of me—and it refers to the Commission providing early and clear information to Parliament. It is not specific on what information exactly should be provided and at what stages; its very nature is that of an interinstitutional agreement attempting to cover a whole range of different scenarios. My point is valid: the Commission controls what information is provided and when. With regard to his other point, the pledge still holds, essentially. The Government are committed—the Prime Minister said it—to provide as much information as is possible to Parliament to enable it to provide its proper scrutiny, without conflicting with the necessity to conduct a lot of these negotiations in confidence as we do not wish to prejudice our negotiating position.
I know the noble Lord, Lord Wigley, will be very keen to hear my point about the devolved Administrations. We are firmly of the view that it is the responsibility of the UK Government to negotiate on behalf of the United Kingdom. Nevertheless, we recognise the specific interests of the devolved Administrations in our negotiations with the EU and their responsibilities for implementing that legislation in devolved areas. We have been clear that the devolved Administrations should be closely involved in preparations for the negotiations, and will continue to engage with them extensively. Indeed, only last Thursday I attended the 21st meeting of the Joint Ministerial Committee on EU Negotiations, where we had a constructive—as they say, full and frank—exchange of views with the Scottish and Welsh Governments and, at the time, the Northern Ireland Civil Service. Now that we have an Assembly up and running in Northern Ireland, I am sure it will want to contribute to these negotiations as well.
I chair one of the joint ministerial committees; I have been up to Scotland many times to take part in these sessions and my noble friend Lady Williams has also attended them. A number of UK Ministers go and there is regular dialogue with all the devolved Administrations, both on the negotiations and, up until now, on ongoing EU business. That will continue and we are looking at how that should develop and be taken forward when we are no longer an EU member state and we move on to the implementation phase. We are committed to ensuring that we have the best deal for all parts of the United Kingdom. The devolved Administrations are, of course, free to engage with their own respective devolved legislatures as part of this process, but the delay that would be caused by creating unnecessary powers of veto could, in our view, frustrate our ability to finish negotiations by the end of the year.
We believe that the Government have a mandate to begin the negotiations and there is no need to introduce additional hurdles or delays before those negotiations can begin. I hope the noble Baroness and the noble Lord, Lord Wigley, will therefore feel able not to press their amendments.

Lord Hannay of Chiswick: I think the Minister referred earlier to anything that is agreed being preceded by the CRaG process to ratify or conclude it. It is hard to believe that the sort of agreement the Government seek and which, as he rightly says, they have support for seeking will not include such matters. Does he not agree that if anything that is in an agreement includes changes to the UK’s domestic law, it will require primary legislation before it can be concluded? Can he just be clear on that?

Lord Callanan: I did not hear the first part of the question, but if the noble Lord was asking me whether I agreed that some parts of the agreement may well require domestic legislation to implement, the answer is yes.

Baroness Hayter of Kentish Town: My Lords, there are two parts to what we have been talking about. One is about the mandate and the other is about oversight of the ongoing negotiations. As I think has just been clarified, the EU Commission negotiators seem to manage very well by being given a mandate from elsewhere —that is, from the Council—and reporting back there, so it really should not be difficult. The Minister seemed to be quoting the Treaty on the Functioning of the European Union by saying that the European Parliament did not have the powers that other noble Lords have suggested. I think he will find that there is an institutional agreement going rather further, and that is what gives it the grip.
During the discussion on the mandate, my noble friend Lord Tunnicliffe, who of course is an old hand at negotiating, said that his definition of the mandate that he used to work with was “Whether I’d get away with it”. It sounds as though our Government are trying to do that, which is rather the problem. Given that the Government have a majority of 80 in the  other place, I really do not see what they are afraid of by our requiring that they should put the mandate, and report on the negotiations, to a House where they obviously control the numbers. They cannot be that afraid of your Lordships’ House, so it is slightly hard to imagine why they are so resistant to this.
The noble Lord, Lord Hamilton of Epsom, championed the existence of Statements. Those work quite well for someone like me on the Front Bench, because I get my fixed and protected time to question a Minister when they come with a Statement. But if there are only 10 or 20 minutes, or even 40 minutes, on a Statement for Back-Benchers when this House has a plethora of real experts and we are talking about something as detailed as negotiations, our Statements at the moment do not really provide the sort of scrutiny that your Lordships would expect on such a vital matter.

Lord Hamilton of Epsom: Does the noble Baroness not accept that the Opposition has Opposition day debates as well, which can spell this all out at much greater length?

Baroness Hayter of Kentish Town: I do, absolutely, but I was referring particularly to experts. I will try not to offend my colleagues now, but many of those experts do not sit on my Benches yet are absolutely in that part of the House that we so value. We have great experts from not just international negotiations but industry and trade. They do not just sit in the Opposition and do not have the grip to be able to take a debate like that. Even if what the noble Lord, Lord Hamilton, suggests were written into the Bill, there would be a day’s debate every month or two, or that sort of thing. We think it important to have more than just a Statement without a vote, particularly in the other place.
The grip is needed to make sure that this happens. Until my noble friend Lord Liddle said so, I had not realised that not every Secretary of State was as good at turning up—although I remember an occasion when one Secretary of State did not turn up twice, having been expected by the EU Committee. Again, offers of good will are perhaps not quite sufficient.
What is important in this came in the example about America—I think it was from the noble Lord, Lord Kerr—but also from the right reverend Prelate the Bishop of Leeds. Parliamentary approval actually strengthens, not diminishes, the Government’s stance; that is worth listening to. The taking back of control was meant to be by Parliament, not just by the Government, but we are surely at our strongest where the two work together. The noble Lord, Lord Wilson of Dinton, said two things. One was that when the Government are strong, they can make mistakes; he also urged the Government to work with Parliament, not set themselves against Parliament.
The noble Lord, Lord Bowness, suggested that a simplified version of what we tabled might be more acceptable to the Government. I urge the Government not to turn their back on that. The Minister will have heard, with only a couple of exceptions, the real feeling that we will do our job best if we can do it in a way that is written into the Bill. We will then be confident that the negotiations will be able to fully  engage this House and, more importantly perhaps, the other House as this vital matter continues. I have a feeling that we will return to this on Monday or Tuesday but, for the moment, I beg leave to withdraw the amendment.
Amendment 27 withdrawn.
Amendment 28 not moved.
Clauses 31 and 32 agreed.

  
Clause 33: Prohibition on extending implementation period
  

Debate on whether Clause 33 should stand part of the Bill.
Member’s explanatory statement
Removing this Clause would prevent the prohibition on extending the implementation period.

Lord Newby: My Lords, Clause 33 amends the withdrawal Bill to debar any Minister from agreeing to an extension of the implementation period beyond 31 December this year. Such a possible extension is provided for in article 132 of the withdrawal agreement, which says that
“the Joint Committee may, before 1 July 2020, adopt a single decision extending the”
implementation,
“period for up to 1 or 2 years.”
My co-signatories and I object to this clause standing part because we believe that ruling out an extension of the implementation period in all circumstances is impractical and against the national interest. We do not believe that it will be possible to negotiate a comprehensive agreement covering trade, security and the other issues covered by the political declaration by the end of the year and, this being so, the logical and sensible thing to do is to allow for the possibility of an extension.
Why do we believe that such an extension will be necessary? I will concentrate on trade, although reaching agreement on other matters such as security will be equally contentious and time-consuming. What is the evidence that it will be impossible to conclude an agreement on time? Let us first be clear about what we mean by “on time”. The EU will decide on its negotiating mandate next month, so no talks will be possible at all until towards the end of February. The withdrawal agreement makes it clear in article 184 not only that the negotiations have to be concluded by the end of December but that ratification has to take place before the end of the year, so that the negotiated agreement can come into force, as far as practically possible, by  1 January next year.
Any comprehensive agreement will be a so-called mixed agreement, which will require it to be ratified not only by the EU Council and the European Parliament but by all national Parliaments and a number of regional assemblies. In the case of the Canadian trade agreement, the one we are told is closest to what the Government now have in mind, ratification itself took over five years. But to be very generous, let us assume that it might be possible within two months. This would mean that the agreement must be concluded by mid-October, giving a maximum of eight months for the negotiations.
It is well known that all trade negotiations, so far in human history, normally take years to complete. The Canadian agreement took more than five years, for example. The Government rightly claim that these negotiations will be different because we are already in full trade and regulatory alignment with the EU, so it will be easier than starting from scratch. While this may be true, it is absolutely clear that the negotiations will not be straightforward.
The head of the Commission, Ursula von der Leyen, said last week in London that it would be impossible to reach a comprehensive deal within the timetable. Even the Prime Minister yesterday said that, while he thought reaching a deal would be “epically likely”, he did not rule out the possibility of a failure to do so because of, as he put it, a possible
“complete failure of common sense.”
I looked up “epically” because, when I first read it, I thought it was a spelling mistake—it is a word that I have neither seen nor used before. It does not mean what the Prime Minister thinks it means. It means
“in a lengthy, grand or important way”.
He is in fact more correct than he probably realises, because this will definitely be done “in a lengthy way”.
What evidence is there to support the Commission’s view and to doubt the Prime Minister’s breezy optimism? It is worth looking at the Canadian deal to get some clues. First, despite the fact that that deal took many years of negotiation, it does not even give full tariff and quota-free access, something that the Government say is absolutely the first building block of what they are looking for. In the case of Canada, there remain quotas on poultry, eggs and meat and tariffs on beef, pork and wheat. This difficulty over agriculture is before we get to the even more difficult issue of fishing rights. The idea that we can easily reach agreement is simply false.
Secondly, on services, according to the Government’s own estimate produced in the document that we were allowed to read only by submitting our phones and going into a windowless room in January 2018, the Canada deal includes over 550 individual restrictions on the trade in services. Yet the Prime Minister says he wants the deal to cover all services. It might be possible in some areas, but the idea that there is a possibility of agreeing 550 concessions that were impossible to reach with Canada within the period that he is discussing is wholly implausible.
More generally, the Government want to minimise the cost of trading with the EU. This assumes a particular importance, because it applies not only to trade between the UK and the EU but also, now, to trade between Great Britain and Northern Ireland. We had a fascinating debate last night on the amendment of the noble Lord, Lord Hain, in which he sought assurance that there would be no restrictions on trade between Northern Ireland and the rest of the UK— restrictions, incidentally, that are envisaged, and indeed set out, in the Northern Ireland protocol. The Minister, the noble Lord, Lord Duncan, made a valiant attempt to argue, in line with the Conservative election manifesto, that there will be unfettered trade, but could not give a definition of “unfettered” consistent with the terms of  the Northern Ireland protocol, which clearly provides for customs and other checks. Incidentally, “unfettered” is now the word when it comes to trade. For how many years, and how many hundreds of times, have we heard the Minister talk about “frictionless” trade? How much of a tactical retreat “unfettered” is from “frictionless” is an interesting semantic issue. There is something in it, but the fact that the Government are not even pretending that they are trying to seek frictionless trade says something.
The noble Lord, Lord Duncan, who was masterful—as was his Sir Humphrey-inspired brief—had to admit that achieving even unfettered trade across the Irish Sea would not be straightforward. This means that it will take time. If noble Lords wonder whether the kind of checks that may well be necessary in future between Northern Ireland and Great Britain and between Great Britain and the EU matter, I would direct them to the impact assessment produced by the Government on 21 October last year to coincide with the publication of the withdrawal agreement Bill. On customs declarations alone, HMRC produced estimates of administrative costs—nothing to do with tariffs—of between £15 and £56 per declaration for goods going from the UK to the rest of the world.
That is before the considerably greater costs that will be incurred in checks on any agricultural products. If at least some of these potentially crippling costs—particularly crippling to small businesses that currently trade only with the EU—are to be reduced, and it is very important that they are, there will have to be extremely detailed and no doubt contentious discussions, and they cannot be done quickly.
The likelihood of a comprehensive agreement being reached by mid-October then looks vanishingly small. Does this matter? What are the consequences of leaving without such an agreement? If we leave without such an agreement, there are two possibilities. Either we leave with no agreement at all—the so-called “crashing out” option, which we have discussed exhaustively over the last couple of years and which your Lordships’ House has consistently agreed would be disastrous for the economy and many other aspects of our lives—or there might be a so-called “bare bones” agreement. This possibility has been acknowledged by the Commission. To me, “bare bones” sounds quite businesslike and potentially attractive, but in practice it means an agreement that covers only tariffs and quotas and leaves all other aspects of the deal—not only trade in services but other issues such as security co-operation—still to be agreed. While this would be better than crashing out, it would be, again, potentially extremely damaging. Such a deal would give the EU tariff-free access in goods, in which it has a balance-of-payment surplus with the UK, but would leave the UK with nothing on services, where our exports to the EU are worth £90 billion—almost twice as much as our total exports of goods and services to the US—and where we have  a large surplus with the EU. In these circumstances, our service industries would be at an immediate disadvantage from 1 January next year, and there would then be no pressure whatever on the EU to  do a deal covering them.
In both scenarios, an extension of negotiations would clearly be in the national interest. The only third option, in the event of a failure to agree a comprehensive agreement by October, would be for the Government to negotiate an amendment of the withdrawal agreement to agree an extension of the implementation period, notwithstanding the current cut-off date of 31 June, and then to amend this legislation along the lines of that amendment. This would be, in one sense, what the Government did twice last year to extend the Brexit date for further negotiations and to get the legislation through Parliament. But in that, as in the other two scenarios, having the current Clause 33 in the Bill is simply unhelpful. It is unnecessary and potentially damaging to the economy, our security and the national interest. It should be deleted now.

Lord Bridges of Headley: My Lords, just before the noble Lord sits down, I quickly ask him something on a point of information. He spoke for 10 minutes and did not mention two words: “Salisbury convention”. I am sure he knows that, on page 5 of the Conservative Party manifesto, there is a clear commitment not to extend the implementation period. Does he agree that this amendment is in contradiction to the Salisbury convention?

Lord Newby: No, because it does not require the period to be extended at all. If the Prime Minister is correct and we pass this amendment, there is absolutely no let or hindrance to the Tory party manifesto being adhered to. Deleting this clause will, I fear, make the Prime Minister’s life easier. He should welcome it.

Viscount Hailsham: My Lords, I associate myself with the remarks made by the noble Lord, Lord Newby, and indeed with the remarks I suspect will be made by the noble Baroness, Lady Hayter. I will not go into the detail of the matter because it has been very eloquently argued by the noble Lord, Lord Newby. I will confine myself to three general points.
The first is that the position that the Government are now taking in the Bill is wholly inconsistent with the position that we took before the general election. We are entitled to know why, as a matter of substance rather than political guile, the Government are moving from a position previously expressed to that now expressed in the Bill.
Secondly, following a point made by the noble Lord, Lord Newby, I say that this prohibition is bogus because we all know full well that a Government with a majority of 80 in the House of Commons can, if they so choose, reverse a provision in a Bill—as they did, for example, on the Fixed-term Parliaments Act. If that is true, then anybody who says that this will help the Government in their negotiations with the European Union is talking nonsense, because the European Union interlocutors will know as well as we do that this provision can simply be set aside.
I come to my final point. I have been involved in negotiations, both as a politician and as a lawyer, for 40 years, and I believe in the importance of flexibility. In the last debate, a number of noble Lords talked about the importance of giving the Government flexibility and not tying hands. The noble Lord, Lord Howarth,  was one; the noble Lord, Lord Butler, was another; and a third was my noble friend Lord Callanan, who made the point that events can overturn outcomes and things can happen which are surprising and destroy timelines. That is going to happen if we impose an arbitrary timetable. What could well happen—indeed, what is likely to happen—is that the Government come back with either weasel words and an amendment of the statutory time; or we get a partial and incomplete agreement, or an unsatisfactory agreement, or no agreement at all. If we had more time, the situation could be perfected.
This is a profoundly unwise provision in the Bill and we would do well without it.

Lord Howarth of Newport: My Lords, I will not repeat the arguments that I put to the House at Second Reading in support of Clause 33 and the ruling out of an extension of negotiations beyond the end of this year, but will just make two points now. I was surprised that the noble Lord, Lord Newby, who, as I recall, once held the economic brief for his party, appeared not to recognise the profound damage to our economy that the prolongation of the Brexit process has already caused. It has now been three and a half years, during which it has been very difficult for rational participants in our economy to make investment decisions or decisions of other kinds. Our economy is now in a fragile condition, and it cannot be in our national economic interests to perpetuate this process any further than is absolutely necessary. For that reason, it is highly desirable that investors should be able to look forward with some confidence to the conclusion of the negotiations about the future relationship by the end of this year.
That brings me to my second point. Again, I was puzzled as to why the noble Lord, Lord Newby, considers that a bare-bones agreement would cover only tariffs and quotas. I cannot see why the essential elements of all the necessary agreements cannot be negotiated between now and the end of the year. Personally, I would be quite relaxed if some technical fine-tuning were still needed subsequent to 31 December, and indeed I accept that the multiple process of ratification across the European Union will take some time. If we can achieve the certainty provided by a resolution of the key issues by the end of the year, that can only be helpful, 2and if the Government reaffirm their determination on that point in the form of Clause 33, that will also be helpful.

Baroness Bennett of Manor Castle: My Lords, the noble Lord, Lord Callanan, in his arguments against Amendment 27, said that it would be easily overtaken by events. That provides a great argument for the removal of Clause 33. The noble Lord, Lord Newby, pointed out correctly that the next deadline point is 1 July 2020. I confess that I looked at a website to check, and that is 168 days away. If you add in holidays, weekends and so on, and think about how many days that gives us to reach a point where we have to decide whether or not we are ready for the deadline of the agreement with the EU, it is a very short time indeed. The noble Lord, Lord Howarth, said rightly that the economy and companies—I am particularly concerned about small businesses—have been greatly  damaged by the uncertainty around Brexit. Removing Clause 33 will take away another point of uncertainty and will give us stability instead of yet another deadline.
Earlier in Oral Questions, my noble friend Lady Jones referred to the false classification—subsequently withdrawn—of Extinction Rebellion in a police document as bringing the law into disrepute. Particularly among young people, it caused grave concern. As the noble Lord, Lord Newby, said, passing this Bill with Clause 33— with something we know the Prime Minister has accepted may have to be removed; we know that a one-line Bill can do that at any point up until 31 December—brings the law into disrepute.
There is also the risk of a crash-out if we get to the end of the year and do not have an agreement. There is a strong suspicion out there in the country—and perhaps among some in this House—that parts of the Government still seek that crash-out outcome. Leaving this clause in the Bill adds to that suspicion.
Finally, we know that the Prime Minister has found it very difficult to find ditches in this country; it has been very hard to identify ditches. I do not think that we want the Prime Minister to waste any more time roaming the country, seeking that ditch that he just cannot find.

Baroness Hamwee: My Lords, can I ask my noble friend a question? If he were negotiating any sort of agreement and learned that the other side had a self-imposed time constraint, would he not regard that as a huge advantage?

Lord Davies of Stamford: My Lords, the noble Lord, Lord Newby, made an unanswerable case. Human beings have been conducting negotiations since the beginning of time, and over that period there have been certain common conclusions about the sort of approach to negotiations that leads to a favourable outcome and the sort that, on the whole, does not. That is part of the common wisdom of humanity. Part of that is that you are at a great disadvantage in any negotiation if you have time constraints greater than those of your counterparty. What we have here is a Government who want to impose on themselves a time constraint greater than that which applies to their counterparty, which is most extraordinary. Mr Johnson may feel that, after all these millennia, he can revolutionise human psychology, and that the conclusions that have been drawn from human experience up until now are no longer valid. I have had quite a lot of experience of negotiations in my life, both as part of a team and from conducting negotiations myself as a diplomat, as an investment banker, as a Minister and so forth. I know that most of those common wisdoms of humanity are valid and correct, and one veers away from them at one’s peril. If somebody behaves entirely irrationally, as appears to be the case in the Government at the moment, one has to ask whether there is perhaps some Machiavellian plot behind the behaviour that explains this irrationality. That is what worries me, because the obvious explanation of Mr Johnson’s behaviour is that he does not want a successful outcome at all. He wants a hard Brexit or a bare-bones solution. He does not want to say so; he does not want to take responsibility for saying so.
A bare-bones solution would leave out altogether these very important issues of our relationship on security matters with the rest of the European Union, the future of the common arrest warrant, the pooling system of information exchange, and so forth. It would leave out a number of very important matters that appear in other amendments on the Marshalled List today: such things as the Euratom relationship, the European Medicines Agency relationship, the future rights of British subjects living abroad to receive their full pensions in the country in which they have taken residence, and the availability of medical cover to British people finding themselves elsewhere in the European Union. All these are very important matters and of course they would be set aside at a stroke if there were a bare-bones solution. There would be no chance of regaining those benefits. It could be that Mr Johnson actually wants that outcome and does not want to be held responsible for the consequences—human, economic, et cetera—of that solution.
Whether or not my hypothesis is correct, one thing is quite certain: the Government’s attitude to this will produce a lot of suspicion. There will be a serious suspicion of bad faith on the part of Mr Johnson and his Government, a suspicion that they are not being quite clear about their objectives in this matter. I can think of nothing worse in terms of poisoning the atmosphere of these negotiations than that suspicion, so I think the Government owe it to themselves to now be very frank and transparent and explain to us why this irrational measure has come forward at all. If it was included in the manifesto, why was it included, and why are the Government still holding to it? Without an answer to that question, the accusation and the suspicion of bad faith will persist.

Baroness Hayter of Kentish Town: My Lords, at Second Reading I mentioned my “I told you so” speech that I have already prepared for when the Government have to come back and seek some additional time to negotiate the future relationship, the complexity of which we have heard about from my noble friend and others in this debate.
I am not an expert on negotiations, but I hear from those who are that they are not simple. They are brutal, according to my noble friend Lord Liddle in the last debate; tough and vigorous was how the noble Lord, Lord Wilson, described them; and fixed deadlines tie one’s hands too much. Indeed, my noble friend Lord Davies of Stamford said about fixed deadlines at Second Reading on Monday that,
“the one thing you do not want to do is to tell your opponent that you are in a terrible hurry. It also means that you cannot use certain ploys … You cannot walk out for two or three weeks … You cannot try to halt proceedings while you undertake a study of a particular subject”—[Official Report, 13/1/20; col. 513.]
which could be a very difficult subject. The noble Lord, Lord Boswell, described this as the high-wire approach to negotiations.
For a Government who have resisted sensible amendments on the basis that they would tie the hands of negotiators, the prohibition on extending the transition period seems a bit nonsensical. Let me be clear, since not all reports have been entirely accurate,  that we know we are leaving the European Union at 11 pm on 31 January. Our objection to the clause is nothing to do with the date of Brexit but is because it places an unnecessary constraint on our negotiators. Why would we tie the hands of our negotiators if another few hours or days could get a better deal over the line? Our EU Committee says that concluding talks by December will be “extremely challenging” and warns—this is something we need to know—that should no extension be agreed by July, it is not clear there is any legal route under the withdrawal agreement to extend it, whether by days or weeks, for whatever essential reason. So that one-line Bill may not actually work: it may work in this Parliament but not on the other side of the negotiations.
Not only that, but the new free trade agreement might need its own implementation period. Processes for customs and VAT, physical checks, rules of origin regulations and schedules—which will be enormous, with all the paperwork—licences and permits, contracts and new systems will need to be set up. Mrs May understood this well and chose the December 2020 date accordingly, but assumed it would be 20 months from when we left. It is now only 11 months from when we leave to the December deadline, but with equally challenging demands—indeed, probably more challenging, given the different regulatory and technical rules on opposite sides of the Irish Sea as a result of the new withdrawal deal. It is very hard to understand why the date for the end of the implementation period has not been changed now that we are leaving in January 2020, rather than in March 2019. The original timeline would have allowed the implementation of the deal, and we now simply do not allow for that.
There is an understandable fear that the hard deadline is not to force the EU to move at speed but because, as the noble Baroness, Lady Noakes, who is not in her place at the moment, helpfully clarified on Monday, a time limit has an “implicit no-deal outcome”. That may be what it is all about, as the noble Baroness, Lady Bennett, and my noble friend Lord Davies have suggested.
One small point on a different issue is that while the Bill disapplies CRaG, it has been pointed out by legal experts in Scotland, I think, that this does not seem to apply to the related EEA, EFTA and Swiss agreements, which were implemented under Clause 6. This means that CRaG continues to apply in those circumstances, so time might be needed for these agreements to pass through CRaG. Will the Minister respond to that issue raised by the Scottish Law Society?
The Government’s majority of 80 leads them to think they do not need to take account of this House. I do not understand why they still seem to need to take account of the ERG, for whom this clause has clearly been inserted. This is unnecessary, as we heard from the noble Lord, Lord Newby. Removing Clause 33 does not undermine the manifesto, because we can still leave and end the implementation period on 31 December. However, as I also said earlier in the week, we will let the Government take ownership of this. We will leave the EU shortly, but on their head be it if the negotiations mean they have to come back to ask for more time. In that case, we will give it with a smile, but also possibly with an “I told you so” note.

Lord Callanan: I am grateful to the noble Lord, Lord Newby, the noble Baroness, Lady Hayter, my noble friend Lord Hailsham and others who have contributed to this debate. I think the key point was made by noble friend Lord Bridges: the manifesto on which my party won the election that delivered a substantial majority for this Government was absolutely explicit in ruling out any extension to the implementation period. The general election has clearly shown that the public support that vision. I say gently to the noble Lord, Lord Newby, that his party put forward an alternative vision that was comprehensively rejected by the public. This clause implements that provision. It binds the Government to this commitment by enshrining in statute that Ministers may not agree to the extension of the implementation period beyond 2020.
I reassure noble Lords that in the withdrawal agreement both sides—we and the EU—have committed to using their “best endeavours” to negotiate a future partnership. Moreover, both the EU and the UK committed to agreeing a deal by the end of 2020 in the political declaration. It is worth quoting from paragraph 135, which says that,
“it is the clear intent of both Parties to develop in good faith agreements giving effect to this relationship and to begin the formal process of negotiations as soon as possible after the United Kingdom’s withdrawal from the Union, such that they can come into force by the end of 2020.”
This clause provides both parties absolute clarity on the timetable for negotiations. This will help ensure that our negotiations can progress at pace and that we have our future relationship agreed by December 2020. It is in the interests of the UK and the EU to agree a deal that supports the flow of goods, the provision of services and business being done. That is what we are going to do.
In sum, this clause delivers on our manifesto commitment to the British public not to extend the implementation period beyond 2020.

Viscount Hailsham: Would my noble friend tell the House whether he thinks there are any negotiating advantages that flow from this clause?

Lord Callanan: It definitely concentrates the minds of both parties. As I said, it has been explicitly agreed in both the withdrawal agreement and the political declaration, as I have quoted, by us and the European Union.
It will ensure that we can move on with negotiating a future relationship with absolute clarity on the timetable. For this reason, the clause must stand part of the Bill. With regard to the questions of the noble Baroness, Lady Hayter, about the EEA and the Scottish Law Society, I will write to her.

Baroness Butler-Sloss: I am sorry to interrupt the Minister, but what has worried me in listening to this debate is what happens if there are impediments to negotiations from the other side which absolutely cannot be resolved by 31 December. Do the Government think that they may have to leave without a deal?

Lord Callanan: No. As I have just said, we very much hope that both sides will be able to reach an agreement. Both sides have committed to do so. I quoted  the section in the political declaration whereby we and the EU have committed to getting the negotiations finalised and coming into force by the end of 2020.

Lord Newby: My Lords, the Minister has in a sense just given the game away. They “hope” to reach an agreement. The Commission has said that it is impossible. The Prime Minister said yesterday that it was not inevitable. The key question which this amendment seeks to address is what happens if you cannot get to that point. When asked whether this could mean we leave without a deal, the Minister said no. So what happens if there is no deal? Is he accepting a bare-bones deal? I do not remember seeing that in the Conservative Party manifesto.
The Minister has done nothing to reassure me that there is anything in the Government’s approach that makes reaching a deal in this timetable even vaguely possible. In those circumstances, as I said in my speech, I do not believe that it is in the interests of anyone—neither economically nor in terms of the national interest, given the security and other issues covered by the political declaration—for the Government’s hands to be tied by law in this way. Therefore, I am wholly unpersuaded by the Minister. For today we will not put this issue to a vote, but we will return to it.
Clause 33 agreed.
Clauses 34 and 35 agreed.
Amendment 29 not moved.
Clause 36 agreed.

  
Clause 37: Arrangements with EU about unaccompanied children seeking asylum
  

Debate on whether Clause 37 should stand part of the Bill.
Member’s explanatory statement
Omitting Clause 37 would ensure the continuation of the refugee children and family reunification provisions of the European Union (Withdrawal) Act 2018.

Lord Dubs: My Lords, I will argue that Clause 37 should not stand part of this Bill. I think I have had three sets of discussions with Ministers about this, for which I am enormously grateful: once on the phone and twice in meetings face to face. I am grateful for the time they have given me. Indeed, I was quite flattered on one occasion that there were three Ministers and seven officials—I thought the odds were just about even on that one. At any rate, I have had plenty of chances to make my points.
Regarding the Salisbury convention, as it was mentioned in the last discussion, it is fairly clear to me that it would allow us to move this amendment—to do what we like—on unaccompanied child refugees, because they were not given any mention in the Conservative Party manifesto. Indeed, it was quite a shock to many of us when we saw the Bill that Clause 37 was there at all, as we had had no previous warning.
Members of this House will be fully aware, and there is no need for me to spell it out in too much detail, of the appalling conditions of children in Calais, in what was formerly the Jungle, or on the Greek islands. Their conditions are desperate. These young people are vulnerable to criminality, prostitution and trafficking; they are in a terrible plight. I have never argued that Britain can take them all. Of course not. All I have argued is that we should take our share of responsibility along with other countries. However, we have a specific responsibility where the children have family here. Clearly, we should support the right to family reunion.
Let me explain briefly how we have got to this position, although most Members of the House will be aware of it. In the 2018 Bill, this House passed an amendment to the effect that family reunion should be retained even after we have left the EU—a right that was established within the EU under the Dublin treaty. There was a big vote in this House and it was passed. When the proposition got to the Commons, the Government accepted it and it became law in the 2018 Act. There it stands, and would have stood until we came to this provision in the Bill.
The Government have given a number of reasons why Clause 37 should stand. I am bound to say, without making too much of a debating point, that when someone gives four or five different reasons for doing something, it weakens the argument. One always tends to think that too many excuses do not add up to a more powerful case. As I shall go on to argue, I have come across at least five excuses or reasons for Clause 37. One is that Parliament should not bind the Executive; another that the 2018 Act was not right for it anyway and that therefore this is not the right Bill; another that there is no need for legislation anyway, as it can all be done via Immigration Rules; and it is best to avoid the potential for legal challenges. There are no doubt others, but I am afraid that, together, I do not find them all that convincing.
One of the alarming consequences of this provision is that, as it is now, there are young people in Calais who have been sent the pretty dangerous signal that Britain does not want them to come here and join their families. The Minister will deny this, but, admit it, if Britain does not want it, the awful thing is that more young people will take the illegal route on the back of lorries to come to Britain.
The Minister will also talk about the thousands of children that we have taken. My understanding is that 90% of the figures that the Minister will give us are children who have come to Britain illegally because there was no legal safe path. It is clear that, if we wanted to rejoin our families, as any of us would in that position, and there was no legal path, we would seek any means of doing it. By having this provision here we are simply encouraging the traffickers and causing alarm to those who might benefit from the family reunion policy. Family reunion is one of the few safe legal routes for unaccompanied children in Europe to find safety. That is why there is a provision in the Dublin treaty. As I said, the Government will have a figure of how many have come since 2010—I think it is about 35,000; it may be more—and our view is that  probably 90% of them have reached Britain illegally. We still look after them of course, because we are that sort of country.
The Government have said that there is no need at all for legislation and that therefore we do not need the provisions in the 2018 Act. First of all, the only way in which we could argue the case for family reunion continuing after we have left the EU is by moving an amendment—what else can we do? We can implore the Government to do it, but it seems to me that the right thing to do was to move the amendment. It worked, because the Government accepted it at the other end. The Government will now say, “Ah, but an immigration Bill is on its way, and that is the right place to put it”. I only quote what Ministers have been saying. The immigration Bill may or may not be the right place to put it, but we have not got it yet. We do not know whether any of this will be in the scope of that Bill. So arguing that we should accept Clause 37 because there is another way of doing it seems slightly doubtful.
Further, at one of our meetings, the Immigration Minister said, “We don’t need this in legislation anyway. It should be done under the Immigration Rules”. First, we in Opposition, as individual Members of the House, have no influence on the Immigration Rules. We must accept them as they are when they come forward. We cannot move an amendment to the Immigration Rules. As I understand it, that is not how Parliament can deal with them. So our hands are tied. In any case, the Immigration Rules cannot cover our relationship with other countries for the sake of getting the children over here. Again, that is not the way forward.
There was an awkward moment when the Minister said that the Government have given a verbal undertaking and asked whether I do not trust them. I find that difficult. Of course I trust individual Ministers who give me their word, but I must say two things. First, they may be promoted out of their jobs next month and may not be there to answer on this issue; they may be answering on other things. I hope that they are all promoted, but there is no assurance that the people who give me their word today will be the people who have to answer on this later on.
Also, I am not talking about individual Ministers, but on certain elements concerning refugee children the Government have not fulfilled their trust. I hate to go over old arguments, but my amendment that sought for unaccompanied children with no family here to come to Britain—it became part of the 2016 Act—originally contained the figure of 3,000. It was dropped because of financial privilege in the House of Commons but, nevertheless, I was assured by the then Immigration Minister that the Government would stick by the letter and spirit of my amendment. Then the Government said, “We can’t have more than 480, because local authorities don’t have any more places”—a fact we have challenged on many occasions. To put it simply, to believe the Government all the time is not too easy. Although I trust implicitly the word of the three Ministers I spoke to, I had to say to them, “I don’t trust the Government fully on this.”
Another argument is quite dismaying: when the Government say that they want flexibility in negotiations, I still find it difficult to accept that they will use  unaccompanied child refugees as bargaining chips. The Government will say, “Not so”, but I quote from a letter that the noble Baroness, Lady Williams, sent to many of us about a week ago:
“The new clause 37 in the EU (Withdrawal Agreement) Bill is primarily about clarifying the role of Government and Parliament in negotiations. It is right that the statutory obligation to negotiate previously contained in section 17 of the Withdrawal Act is removed and not retained by this amendment, so that the traditional division between Government and Parliament be restored, and the negotiations ahead can be carried out with full flexibility and in an appropriate manner across all policy areas.”
It seems that the Government want to use unaccompanied child refugees for the purpose of negotiation. The Government may have meant a more limited form of negotiation—that is, to say that they will negotiate on behalf of child refugees with family here in the same way that EU countries could then agree to take any children here who have family elsewhere. If that is it, okay, but that is not what the letter says. Talking about “full flexibility” and
“an appropriate manner across all policy areas”
is a pretty wide statement. If the Government withdraw that, I will understand, but I do not like the idea of children being used as bargaining chips.
Of course, at Second Reading, the noble Lord, Lord Callanan, talked about removing the obligation, to avoid legal challenges. The Government worrying about legal challenges suggests that they are doubtful about whether they will meet their legal obligations.
I mention bargaining chips but there is another point here, which we discussed in the previous debate. If the Government do not want to be tied by legislation in negotiations, which seems to be the argument against accepting Clause 37, how do we have Clause 33, which we have just debated, on a prohibition on extending the implementation period? I do not argue with its merits, which have just been debated, but it seems that the Government are saying, “Yes, Parliament can, through this legislation, tie the hands of the Government”, yet they should not be doing so in relation to unaccompanied child refugees. It does not seem to stand up.
Further, the Government have said that they have already approached the EU on this matter. So they have seemingly started negotiations. I understand that a letter went to the EU but nothing has come back. I thought that the negotiations were not due to start until after the end of this month. Well, if they want to start negotiating, fine, but that seems to be the position.
I find myself in a difficulty here because, for all the words they utter about supporting child refugees, the Government are turning their back on them. Clause 37 has attracted a lot of publicity, mainly on the part of people who are concerned about what this means and why the Government are being negative about child refugees. I am sure that individual Ministers do not want to be; the provision is indeed very limited. At a peek, it simply says that if a child in an EU country—I am talking mainly about refugees in northern France and in Greece, particularly on the Greek islands—has relatives here, surely it is right that we should make provision for them to join their relatives. Surely that is the very minimum that a humanitarian country can say.   What is better than family reunion for child refugees who otherwise must stay in appalling conditions or make their way across the channel?
Finally, I believe that the British public are essentially humanitarian in their instincts. I believe that, when the argument is put, they support the idea that we should be generous as regards child refugees—as I say, not taking them all, but taking our share of responsibility, particularly where family reunion is concerned. I believe that a measure such as the one I am putting forward will have the widespread support of the British people, which is why I am happy that the amendment is here. I hope that the Government will find the ability to support it, even at this late hour.

Lord Kerr of Kinlochard: My Lords, my name is on the amendment because I regard it as the most important matter of honour that we must deal with in the Bill. The whole House admires the stamina with which the noble Lord, Lord Dubs, has pursued this issue. I declare an interest as a trustee of the Refugee Council, which was run by the noble Lord for many years and still runs on Dubs energy and still gets his constant support.
On this issue, the House was persuaded by the noble Lord’s arguments in 2016, and again in 2018. We are now in a curious position where the Government say that the 2018 provision is undesirable and needs to be replaced with this new one. The most important thing about the Government’s proposed new Clause 37 is that it kills Section 17 of the 2018 Act. What is the difference between the two? The 2017 Act laid on the Government the obligation to “seek to negotiate”—not to negotiate, because we cannot do that because a negotiation has two sides—a deal for these children. Everything else in the proposed new clause is the same as in Section 17, except that we now find that the Government must make a statement to us on what their policy is.
I am not terribly worried about the Government’s policy here. I believe the assurance given by the noble and learned Lord, Lord Keen, at Second Reading, that the Government’s policy has not changed. I believe that the Government want this to happen. However, I am not clear about what priority the Government attach to it and I am very suspicious that they wish to use it as a negotiating card. That is what is most alarming to me and, to be honest, most disgusting. The fate of these children should not be seen as a matter for negotiation.
The noble and learned Lord, Lord Keen of Elie, on Monday night made one substantive argument against this amendment, apart from saying that government policy has not changed—on which, as I say, I believe him. He said:
“It is vital that the Government are not legally constrained in those discussions.”—[Official Report, 13/1/20; col. 554.]
Implicitly, that means that the Government might not wish to pursue this and might wish to try to trade willingness to do this for some concession by the other side. That seems particularly offensive.
I support everything the noble Lord, Lord Dubs, said, particularly about the argument that the noble and learned Lord, Lord Keen, did not use on Monday   night but that one hears in the corridors: that there is no need for this provision here and it would be better placed in the immigration Act or in Immigration Rules. The noble Lord, Lord Dubs, has demolished these arguments, but I add one more to his. The provision in law now, Section 17 of the 2018 Act, and the provision in this clause—the Government’s new language—are about reciprocal obligations. We would be negotiating to get the other 27 to agree to take unaccompanied children who are in this country and would like to be reunited with their families somewhere in the 27. That clearly is not appropriate to Immigration Rules or the immigration Act, because it is about people leaving the country, but it is highly appropriate to the negotiation about to start. That is why it should be in this Bill. I support the amendment.

Baroness Hamwee: My Lords, I too have my name to this amendment. The noble Lord, Lord Dubs, has been very measured, as ever, in his introduction to this debate and it seems the noble Lord, Lord Kerr, gives an unarguable analysis of the position.
I have said of other provisions of this Bill and of the Conservative manifesto that they are dog whistles. If somebody thought that this was a useful dog whistle as a replacement for the 2018 legislation, they got it wrong. Like the noble Lord, Lord Dubs, I believe that the concern in this House for unaccompanied asylum-seeking children reflects public concern. We see them as children and seekers of asylum, not as immigrants whose numbers are to be kept down, and not as in any way other.
The Minister, the noble and learned Lord, Lord Keen, at the end of our day of the Queen’s Speech debate said that Section 17 of the last Act was no longer appropriate because the negotiations have already been started by other states. I cannot read into Section 17 that it refers to those negotiations. The noble and learned Lord is far too skilled a lawyer and wedded to good law to be comfortable with dog whistles in the form of legislation, and I am sure the same goes for the noble Baroness, Lady Williams of Trafford, if she is the one to be answering this debate. I hope this can be explained in more detail—unless, of course, I have misrepresented it. Laying a statement of policy—the requirement of this clause—is not getting the job done.
The noble Lord, Lord Kerr, said there are no other changes. There is one change in the way the terminology is used that I am puzzled about. The reference to the child’s “best interests” has moved from coming to the UK to joining a relative in the UK. I am puzzled about it, but even more bothered. What significance should we read into this? Noble Lords will realise that I do read significance into this. Again, can the Minister help? The new clause must mean something different from the original—which, as has been said, is very modest. In non-technical terms, it means a signal that the UK Government are rowing back from working internationally to protect a rather small number of children who have undergone and are undergoing experiences that few of us could cope with—or, of course, that they are bargaining chips, as has been suggested. I understand that suggestion. It is not just about leaving them stranded on a journey to sanctuary  in appalling circumstances; it leaves them vulnerable to exploitation, abuse and the particular risks of getting across the channel. Withholding the right of family reunification is not the way to tackle the scourge of people smuggling and people trafficking. Please let no one say that it would be a pull factor, because it is the push factors that we need to have in mind.
To be positive, I have some questions. What can the Minister tell us about the progress of negotiations on the arrangements, given that the Government have expressed commitment to the principle of family reunion and supporting the most vulnerable children? I think all children are vulnerable. Surely it is not about putting this on the back burner. What discussions are they having with organisations that support families to reunite about the design of a replacement for the Dublin system? What plans are there for necessary domestic legislation? Of course, I would welcome their adoption of my Private Member’s Bill, but I know that is not how these things work.
Earlier this week, other noble Lords may have had an email from a group of “kids”, as they style themselves, from Sherington Primary School in Charlton. I cannot read all their letters, but I will read just a little from one:
“I can’t imagine what it would be like to lose my home, my parents and to have to leave my country. These children are completely alone and terribly vulnerable. Surely we can’t just turn our backs on them. I thought my country was better than that. Please reconsider.”
That is a kid from year 6 of a primary school. I thank the 14 kids, whose names I am not reading into the record for safeguarding reasons. They may be kids, but they display a very clear understanding of the importance of safe and legal routes.

Bishop of Worcester: My Lords, I am pleased to support this amendment, to which my friend the right reverend Prelate the Bishop of Durham has put his name. He is sorry not to be able to be in the Chamber today. A few weeks ago, we celebrated the story of Christmas. In the nativity, the happy events in a Bethlehem stable were followed by the more dramatic flight of the holy family to escape the violent persecution of King Herod. As we discuss this amendment, that story of the child Jesus and his parents fleeing from violence to a foreign land resonates loudly.
Children are among the most vulnerable victims of conflict, persecution and violence around the world. We all know that they do not choose to become refugees separated from their families. We as a nation can choose to reunite some families torn apart by conflict by offering children shelter, hope and a future. That is what I believe the majority of people in this country wish, and I am sure that is what the Government wish. This amendment seeks to ensure it by guaranteeing a safe, legal, effective and managed route for child refugees to join their families in this country.
As we prepare to leave the European Union, the United Kingdom has an opportunity to decide what kind of nation it will be and, very importantly, to communicate that to a watching world. The legislation we agree will send a powerful signal about what and who we value.
As has already been observed, this clause has provoked much concern. At a ministerial briefing yesterday, intended to reassure those of us who are concerned about it, I found myself puzzled. We were told of the Government’s excellent record, and that it will continue. That is good, but why then remove the family reunion obligation from primary legislation? We were told that the latter was constitutionally odd, and, further, that the Government need to ensure that their hands are not tied during Brexit negotiations. At the same time, we were assured that refugee children would not become bargaining chips in negotiations about anything else. We were told that there is a need for reciprocity, although the numbers of children going in the opposite direction, from this country to others, is minimal.
As I understand it, the Government maintain that this clause will not change anything. If that is the case, why not remove it? This amendment would reassure those who are nervous that this country will continue to be a place of safety and sanctuary for the most vulnerable refugees fleeing persecution and conflict: children. It would reassure everyone that the Government will uphold their commitment to those children and provide a measure by which we may all be held accountable for our shaping of this nation as a place of hospitality and welcome. That is surely worth a bit of constitutional oddity.
The story of Jesus and his parents fleeing their homeland for a place of safety is a story repeated millions of times over in our world today. Can we assure everyone that this country will continue to be a place of safety for children, especially those who have been separated from their families?
I commend this amendment and ask the Minister: will the Government reinstate their commitment to protect the most vulnerable of refugees: children?

Baroness Butler-Sloss: My Lords, we should be ashamed, listening to the noble Baroness, Lady Hamwee, reading out what a primary school child is reminding us about. We are adults: many of us are parents, all of us are in some way related to children, and for goodness’ sake, we were once children ourselves.
I am quite taken aback. Here we are, as adults, debating what should happen to these children. Section 1 of the Children Act 1989 said that the welfare of children is paramount, but we must also remember that people are vulnerable, and children are vulnerable young people. This small group of children about whom we are speaking have rights. This Government are proposing to take away their rights, because in the 2016 legislation of the noble Lord, Lord Dubs, which I strongly supported, and in the 2018 withdrawal Act, the rights of this small group of children were upheld. Now the Government are taking them away, even from the latest withdrawal Act.
I am sorry that because of family affairs I did not attend the meeting yesterday, and I am afraid that I did not see the Minister’s letter, but it was extremely helpful to hear what was being said. What I find extraordinary is that it is part of existing law. As for the idea that it is an oddity and we should not be legislating, this House supported the House of Commons to legislate for children with rights to rejoin their  families in this country in 2016 and 2018. I make no apology for repeating this. For goodness’ sake, it is existing law. We are not talking about going out on a corner or something unusual; we are talking about retaining what this House and the House of Commons have already passed. This is one point which the Government have not met. It is existing law. The children have rights under Dublin, but they also have rights under English law, and this Government are intending to remove them.
The Government’s proposals seem to me to be peanuts. They do not in any way reflect what has already happened in Parliament, and that is not good enough. Coming back to what a primary school child in year 6 was saying, are we going to fail our own children, let alone the children with rights to come to this country?
I did not want to support amendments to this Bill, because I recognise that we have got to get it through, but this is a separate issue. It bears no resemblance to the rest of the withdrawal Bill, but my goodness, it matters. It is not only the children under the trees in Calais and Dunkirk—I saw them last year, and former MP Fiona Mactaggart and I wrote a report about it—but also the fact that they have a right to come here. Are we just going to let it go by the board?

Baroness Nicholson of Winterbourne: My Lords, the compassion in the speech of the noble Lord, Lord Dubs, makes it extremely difficult to oppose him —but oppose him I do. Despite the wonderful statements by Cross-Benchers of enormous eminence who know more about children’s law than anyone else, my work in international children’s care tells me that this way lies danger. I have worked with children on all continents of the globe. I used to be a director of Save the Children and have worked with almost all international children’s organisations, and perhaps the heartland experience that I wish to offer the Minister is on child trafficking.
When I was fortunate enough to be the rapporteur for Romania, and when working in other countries on this, I saw the deep underbelly of the filthy trade that happens when you begin to move children away from their own jurisdiction. Whether a child is deemed to be a refugee or is labelled as part of a family, child trafficking is the fastest-growing sector of organised crime on the globe today. The European Union legislation has not only failed to protect those children but has, in some ways, made things worse. I will give a clear example of a Member of the European Parliament—from France, incidentally, although this is not a criticism of France as such. When we were having this debate in the European Parliament, he could not understand why the free movement of children should not take place, since the European Union allowed the free movement of camions. Noble Lords will remember that “camions” means lorries.
That is exactly what happens: once you start moving children around, there is no stopping it. It does not help to say that they are coming to the United Kingdom. One of the most traumatic cases I had to deal with was that of a child from Romania. When I went there, there were 30,000 children who had been trafficked in  eight years: no names, no pack drill, just numbers on a computer. One of them was a boy who came as a refugee to London on a false passport. In London, that false passport was changed and he managed to get an American passport. When he arrived in America, he was met by eight men, and he has never been seen again. Thanks to one of those wonderful efforts by the FBI, the CIA, Scotland Yard and the Romanian police, 11 men were captured. They were said to be the biggest child trafficking ring for pornography on the globe.
I beg the Minister to retain Clause 37. We need to protect these children, to help them to stay in their own jurisdiction, not to move them around like this. They are unprotected as soon as they leave their own jurisdiction. We cannot manage it. We in Britain are very poor at managing unaccompanied children of our own. Look at the ones in the Midlands, for example. We have thousands of children coming in every year from countries trying to dump their children here. Others then pick them up and sell them.
I have another very good example, although there are too many to give all of them. When I went to Bucharest originally, there were 12 trafficking agencies—

Baroness Jones of Moulsecoomb: My Lords—

Baroness Nicholson of Winterbourne: I will give way. I will have difficulty, as I cannot hear, as noble Lords know. Somebody will have to tell me.
In Bucharest there were 12 trafficking agencies, and when we pushed them out, they went over the border to Moldova, and they are now bringing in children from China.

Baroness Jones of Moulsecoomb: Will the noble Baroness give way?

Baroness Nicholson of Winterbourne: If noble Lords will forgive me, I will ask someone to interpret for me, because I was born deaf and will not pick it up.

Baroness Jones of Moulsecoomb: I have been to Calais and met unaccompanied children: on one occasion my noble friend Lady Bennett and I were together in Calais. Does the noble Baroness accept that the children most at risk are the unaccompanied children? The children we are talking about are coming to their families. They do not have a jurisdiction; they do not have a family unit. They are coming to their families.

Baroness Nicholson of Winterbourne: Lack of a jurisdiction is not quite the case. They have not lost their own jurisdiction, unless they have been signed out of it. You can therefore get them back home to their own jurisdiction. That is why my work, and the work of most people who, like me, work internationally, is to try to look after those children at home, to support the families and to bring clean water and food and everything else. Of course children can be signed out—by their own judges, for example—but most of the children that the noble Baroness is describing  will not have been signed out at all; they will just have moved.
So I will merely say that we know all too well what happens to children when they are moved around. We in this House should not do anything to encourage that movement. That is why, from the heart, and from all my experience, I urge the Minister to retain Clause 37.

Lord Scriven: My Lords, I have sat and listened to the debate on the Bill in this House, which has been wise—and sometimes entertaining, sometimes depressing, depending on one’s view of leaving the European Union. For the past two days I have stayed quiet and reflected on what has been said. For me it has been a surreal debate at times. Last night we had a debate in which all sides of the House pleaded with the Minister to keep one single market in the United Kingdom, and the Minister could not agree that that could be guaranteed. Earlier today there was an amendment about the rule of Parliament, and taking back control of the sovereignty of Parliament and not the sovereignty of the Executive. In the previous debate the Minister said that our hands should not be tied in negotiations—but the Government are tying their own hands by putting a false deadline on the negotiations.
However, I have to stand up now, because we have moved from a surreal debate to a cruel and heartless debate. Now we are talking about children who have family in this country. They are segregated; they will have seen war and persecution; some of them may have seen their mothers raped; some will have seen things that we cannot understand. And we already have a law in this land that says that, as a guarantee and as a matter of principle, they will come here now. Clause 37 takes that away. The Minister shakes her head, but it does. Basically, it says that rules will be laid before Parliament in two months’ time. It stops the existing provision and tries to put in a new provision—and we know not what that new provision will be.
Sometimes in politics, you just do the right thing. You do a thing as a matter of principle. I see nothing at all wrong in bringing here, as fast and as safely as possible, unaccompanied children who have family in this country. It is the right thing to do practically, and it is the right thing to do in principle. I must say to the Minister that this is a political decision. It is not a legal decision; there is nothing impeding negotiations. What is more, it is the right thing to do. I do not care what the other 27 countries do. As a British citizen, I want my values to be that we accept these children as a matter of principle. If the other 27 do not wish to do that, that is about their values—but this country, and this Parliament, should stand steadfast in saying that this is the right thing to do, and we want it to happen now.
I tried to think why the Government would not just allow this to happen. Why would they want to put a two-month staging post in place? Do they not want to do it? The Minister and the Government keep telling us that they do want to do it, and that it will happen. Fine. Are they not quite sure how it will happen, so they want to change the rules and the policy? The Minister shakes her head. So why have they not shown us what the new policy will be? Why the two-month gap? What are we waiting for? If nothing is going to change, the existing provision should stand.
Are we saying that we are putting in a provision for a two-month wait and nothing will change? Yet there are children across the country who need our support and help. Or are we going to use these young, vulnerable children as a negotiating chip? What a disgraceful position for us, as a country, to get ourselves into—that we could use the most vulnerable of the vulnerable as a negotiating position to try to get the other countries to agree to do something, we know not what? There is no reason for this clause—other than the possibility that there is something, however slight it may be, that the Government wish to change. I do not believe that that is the British way, I do not believe that those are British values, and I do not believe that that is what the British public will support.
I will end with what Robin Walker said when he was a Brexit Minister in the other place. He said that this was a matter of principle. I agree: it is a matter of principle—and it is time to put principle into action and stop the fake negotiation.

Lord Mackay of Clashfern: My Lords, I think my credentials in legislation for children are fairly long and fairly clear—or at least I hope so. Before we start to think about children in principle, it is vital to think about the provision that we seek to replace. The Clause in the 2018 Bill gives children no rights whatever. It does nothing more than require the Government to enter into negotiations with regard to those children. That is all, which is very important.
However, the question is: is Parliament entitled to tell the Executive what they must negotiate for? That is the language of the part of the letter to which the noble Lord, Lord Dubs, referred. In other words, it is said that, as a matter of principle—I will elaborate on that principle in a minute—it is not right that the Government’s hands should be restricted by Parliament before the negotiations. It is the Executive’s responsibility to do the negotiation; it is for Parliament to call the Executive to account on how they have done it.
I shall refer to this only briefly, but your Lordships will remember that in the decision of the Supreme Court in relation to Prorogation, it pointed out that the important thing was the accountability of the Executive to Parliament. That makes an important distinction between the Executive and Parliament, because the Executive have the executive function, and then Parliament has the right to call them to account for the way in which they have carried it out.
The provision in question—Clause 17 in the 2018 Bill—is precisely that. It is an instruction to the Executive to open negotiations in a certain way. I understand from what we have heard already that the Executive have entered into such negotiations. However, the point made in the letter is a general one, of the kind I have just mentioned.
In the light of what the speaker before me has said, it has to be remembered that the existing rules are Dublin III. This gives rights to these children who are in the EU to come here under the conditions of protection it requires. There is no provision in this Bill to alter that, so the existing provisions remain as they are in relation to Dublin III.
What Parliament is asked to do now in the withdrawal Bill is to substitute that incorrect interference, as it was seen, with the freedom of the Executive to negotiate and to make a statement on the Executive’s position with regard to these children. The Executive’s position has been stated to be—it is accepted that this is correct —that the Government’s attitude to this is the same. In other words, they would wish something like the Dublin III provision to continue into the withdrawal agreement and the political declaration as given effect to in the ultimate agreement.
I had intended to attend a meeting yesterday but when I arrived at Room 20 I found that there was no one there but myself. Before I reached the room where the meeting was—Room 10A—I discovered that the meeting was almost over. Therefore, I have not had any discussion with the Government about this whatever. The letter I received, in which there is the passage to which the noble Lord, Lord Dubs, referred, is concerned with the principle that the Government are responsible for the negotiations, so they have to state their objectives and include—this is important—the children here in this position whose families are in the EU. Those children are not dealt with in the amendment of the noble Lord, Lord Dubs; in fact, it is no longer an amendment because it became part of the 2018 Bill. Therefore it is right—it is not a bargaining factor; it is a balance—that children in the EU in this position with family in the UK should come here and have a right to do so; and that children here whose families are in the EU should also have a right in the same way. That is a proper balance to achieve, and is what the statement is supposed to deal with in the Bill before your Lordships.
It is mistaken to think that this provision damages the underlying view that the noble Lord, Lord Dubs, had and which I supported. Your Lordships cannot believe that I do not believe that what he wants to achieve is right—I am sure that it is right—and I am equally sure that it should apply the other way around. I ought to be just as much concerned for the children here who are in this position and whose families are in the EU as the other way around. They are all children; they are all in much the same difficult position; and we should do everything possible to make the necessary arrangements for them to be reunited with their families. That is precisely the Government’s intention as shown in Clause 37.

Baroness Jones of Moulsecoomb: My Lords, I support the noble Lord, Lord Dubs. Unlike him, I have not had any explanation from the Government about this, because an explanation—I looked it up in a dictionary just in case—involves explaining. We have not heard explanations, but we have heard excuses. Those excuses narrow down to three matters. First, the existing law in Section 17 of the European Union (Withdrawal) Act is perfectly all right and reflects the will of this House and Parliament generally; it has passed. The change cannot be interpreted as anything but a watering down. It is either a watering down or, as we have heard, a bargaining chip—something to trade when the negotiations happen.
The worst explanation is that this is a dead cat. It is an issue that the Government purposely know will excite much of this House; it will raise a lot of concerns  and we will, I imagine, push it hard. The Government are therefore narrowing down the matters that we will push hard on when we come to Report. Whatever it is—whether it is a watering down or a bargaining chip, which would be absolutely wrong, or a dead cat—the conclusion is the same: we must remove this clause from the Bill. The Green group here, if I can call us that, supports the noble Lord, Lord Dubs, in his efforts.

Baroness Blower: My Lords, it is a pleasure to support my noble friend Lord Dubs in this matter. For me, this is a moral and ethical matter as well as a political one. Why would a Government resile from a clear provision to facilitate the reunification of refugee children with their families, particularly when it had already been passed into law?
A noble Lord opposite, who is not currently in his place, said that a Government with a majority of 80 might make some big mistakes, and the inclusion of Clause 37 would be just such a big mistake. As my noble friend Lord Dubs said, the British people are essentially humanitarian. The Government would be seen to be lacking in their will for social justice and basic humanity if any inhibition was put in the way of ensuring that that small number of children—who are already out of whatever their jurisdiction might be deemed to be, but find themselves in difficult and, for us, unimaginable circumstances—are reunited with their families in this country.
It is often said that a society is judged by how it treats its most vulnerable, its weakest and those in the most difficult circumstances. We would be found wanting if we were not to oppose the introduction of Clause 37; we would be treating badly those who are already extremely vulnerable. I would much prefer to be well considered in how we deal with, consider and treat the most vulnerable.

Baroness Sheehan: My Lords, I cannot believe we are here again. It is like déjà vu, or a bad dream. I thought we had put this issue to bed. It took a long time previously and I have not forgotten how hard NGOs and people on this side of the House—and, of course, the noble Lord, Lord Dubs—had to work to make Dublin III work for unaccompanied asylum-seeking children who had family here. It was not an easy legal trip but, through JRs and so on, we got it to work eventually, and the thought that the system might be dismantled is too depressing for words.
It seems that Conservative Governments pass up no opportunity to try to prevent us abiding by our legal duty to uphold the rights of the child. I fear that views sometimes articulated by the right-wing press make some Members on the government Benches think they are being taken for a ride. One such view is that these children are sent here as a way to cleave open the system, so that the rest of the family may follow. Can they produce the evidence to back that up? No, because there is none. Children are more likely to stay quiet about where their family is because they fear that retribution might be visited upon them.
Another such view, referred to by my noble friend Lady Hamwee, is that allowing family reunification creates a pull factor that will encourage others to  make the trip. I suggest that anyone who truly holds that view visits some of the refugee camps and speaks to people there. I am sure that listening to their human stories—such as that of Adam, whom I know well—will encourage them to think differently. Adam is not his real name. He fled north Darfur at the age of three with his family. He was orphaned but made it to a refugee camp where he lived a hand-to-mouth existence until the age of 14, in constant fear that the Janjaweed militias would one day succeed in taking him away. There was no school and no hope, just fear. At the age of 14 he took the decision to leave to try to make his way to Europe because the risk was worth it. He was driven to take the risk by desperation. His is just one story. There are many more children like Adam who desperately need our compassion and our kindness but, most of all, our commitment to international rules of law that protect the best interests of the child and, in particular, to the continuation of the Dublin III regulation once we have left the EU for good.
Removing our commitment to Dublin III from the Bill with a promise to make good later is not good enough. These children, and in particular their advocates, need to know that a system that has finally been made to work will not be dismantled. Starting from  scratch to set up another system that works legally will mean that time will be lost, and lost time means that lives will be damaged. I think the Government will agree that there will be a gap in legislation and they cannot know how long it will be. Please let us leave things be.

Lord Mackay of Clashfern: The Dublin III arrangements will continue until the end of this year. The Government’s purpose is to make arrangements that will take effect immediately after that. That is what this is about. It is not about taking anything away. It is about construction after the end of this year, assuming that—I am assuming what was said in the last debate—still stands.

Baroness Sheehan: I thank the noble and learned Lord. The Government say that they will, but the question is when. There is no guarantee that there will not be a gap through which—

Lord Mackay of Clashfern: There is no guarantee that anything is going to happen particularly, but Dublin III is in and the Government have expressed their intention to replace it with an arrangement that applies to children here who have family in Europe and to children in Europe who have family here.

Baroness Sheehan: If, as the noble and learned Lord said, nothing is going to change, let us leave things be.

Lord Elton: I have just a small point. I understand that under Dublin III “specified family members” refers not just to parents but to grandparents, aunts, uncles and siblings. When she replies, will the Minister slip in a word because that would make it easier for some of us to follow what is happening?

Lord McNicol of West Kilbride: My Lords, I rise to explain why Clause 37 should not stand part of the Bill. There is very little to add after the dozen contributions and the eloquent speech by my noble friend Lord Dubs, so I shall keep this short as we wait to hear from the Minister. I hope that her words will be positive.
The Government’s inclusion of Clause 37, which reneges on their previous binding commitment to seek to negotiate reciprocal agreements with the EU to facilitate the safe passage of child refugees with family in the UK is unnecessary and unjust. We will shortly be told that the Government’s commitment has not changed and that their policy remains the same. Your Lordships’ House was not convinced by this argument during consideration of the withdrawal Bill, which is why it voted overwhelmingly to insert the negotiating objective, and I am sure this House will not be convinced by the argument now, although we wait.
The provisions in the 2018 Act have been in place for 18 months and were not opposed by the Government. That surely means that they cannot be considered hostile or as examples of Parliament unfairly asserting itself over the Executive. The closest parallels I can see to the Dubs provision are the environmental ones in Section 16 of the 2018 Act. These required the Government to do something. Ministers fulfilled the requirement and that section has now been replaced. Ripping up prior commitments in the face of such opposition is not how a new Government should start their term in office. It is not too late for the Minister to accept the amendment or to bring forward the Government’s own text ahead of Report. I hope the Government will do the right thing. However, if they do not take note of this debate, we will certainly bring back the substance of it on Report.

Baroness Williams of Trafford: My Lords, I thank all noble Lords who have taken part in this debate and, in particular, the noble Lord, Lord Dubs. I have had many discussions with him, as he outlined. We do not always agree on how we are going to get to places, but we certainly agree with the end. I think Parliament and the Government are in absolute agreement that we are all fully committed to the principle of family reunion and to supporting the most vulnerable children in the world. Our policy on this has not changed. I want to underline that point because noble Lords seem to think that perhaps the policy has changed. It has not. On the point the noble Lord, Lord Dubs, made on the manifesto commitment, it is writ large in our manifesto:
“We will continue to grant asylum and support to refugees fleeing persecution”.
We intend to keep to that commitment, and I am sure Parliament will hold us to account if we do not.
Clause 37 underlines that. We could have just deleted Section 17 and, by turn, Clause 37. We did not because we wanted to outline that commitment again in legislation. The commitment builds on the Government’s proud record of providing protection to vulnerable children. Since 2010, the UK has granted protection to 41,000 children—7,500 of them in the year ending September 2019—most of them because of our obligations under  the refugee convention and the wider commitments that we have made. It is mostly nothing to do with EU structures.
More than 5,000 unaccompanied children are being cared for by local authorities in England alone—an increase of almost 150% since 2014. The noble Lord referred to local authorities, and he knows that the Government wrote to local authorities in good faith, and that whenever we heard about additional places being available, we took note and upped our number under Dubs. We have granted 27,000 family reunion visas under the refugee family reunion Immigration Rules over the last five years. This is not a mean Government or a mean country, and I am very proud of our record.
In 2018, the UK received more than 3,000 asylum claims from unaccompanied children, accounting for 15% of all such claims across the EU. That makes ours the third highest intake in the European Union. On national resettlement schemes, we take more children than any other country in the European Union. It is worth saying this because sometimes, if you listen to debates in this House, you would think that we do not do anything. It is important to outline our record, which reflects the unique importance of protecting unaccompanied children and preserves the principle of family reunion, which will continue. I commend this House on its strength of feeling on this issue—we are all humanitarians, and I assure noble Lords that the Government share an undiminished commitment to addressing these issues.
Clause 37 concerns only whether there should be a statutory duty to negotiate an agreement on family reunion for unaccompanied children who have applied for international protection in an EU member state, and who have family in the UK, and vice versa. The debate is not on wider issues relating to refugees, asylum or family unity. It does not represent a change of Government policy—as I said at the outset—it simply removes the statutory requirement to negotiate. We remain fully committed to providing protection to vulnerable children, and noble Lords might note that we have already committed to taking 5,000 people from beyond the MENA region, in dangerous areas of the world with vulnerable children, in the next year alone.
Noble Lords will be aware that, as part of the negotiation and making of treaties, including international trade agreements, this is a function of the Executive. It is interesting that the noble Lord, Lord Newby, said in the previous group that he did not want to tie the Government’s hands, but in the group before that, the noble Lords, Lord Butler and Lord Howarth of Newport, said that Parliament should not tie the Government’s hands. My noble and learned friend Lord Mackay of Clashfern made a good analogy with the Prorogation decision.
A statutory negotiating objective is neither necessary nor the constitutional norm. It is unnecessary because the Government have already written to the European Commission on 27 October to commence discussions on this issue. It is vital that the Government are now able to get on with it. The UK has existing and  extensive legal provisions to guarantee family reunion, and one noble Lord—it may have been the noble Lord, Lord Scriven, but I apologise if I am wrong—spoke of no guarantees going forward, yet this legislation already exists, and is not affected by EU exit in any way. Furthermore, the UK will continue to be bound by the Dublin regulation during the implementation period, as my noble and learned friend pointed out.

Lord Scriven: That is a bit perplexing. If the guarantee is already in law, what is this clause about?

Baroness Williams of Trafford: The noble Lord hits the nail on the head, because one might ask what Section 17 was about in the first instance. I said at the beginning of my speech that Clause 37 could not have existed, and we could have deleted Section 17, but Section 17 is, in most part, as it was originally, and is amended to include the reporting to Parliament and not the seeking to negotiate. It goes above our obligations and commits the Government to lay that Statement to Parliament on our policy regarding future arrangements with the EU for the family reunification of unaccompanied children seeking international protection, providing Parliament the opportunity to scrutinise our progress.
The clause makes it clear that supporting the most vulnerable children remains a priority, along with restoring the traditional division of competences between Parliament and government, as the noble Lords, Lord Howarth and Lord Butler, pointed out. The noble Lord, Lord Howarth, said that Parliament cannot give the Government their marching orders in negotiations. I hope that I have quoted him correctly.

Lord Howarth of Newport: As long as the Minister does not suppose that I do not fully support the spirit of the amendment of my noble friend Lord Dubs.

Baroness Williams of Trafford: No, I was not making that inference. I was trying to point out both consistency and inconsistency within some of the debates we have been having today, as noble Lords seem to have contradicted themselves depending on what the issue is. On the division of competences between Parliament and Government, noble Lords will have seen, and will continue to see, changes being made across the Bill. It does not undermine our policy intent and rightly ensures that Parliament is informed of our policy intentions in respect of our future arrangements. The noble Lord, Lord Dubs, said that we have already written to the Commission, and that is correct. It shows our intent and commitment in the coming year.
The noble Lord, Lord Kerr, spoke of Clause 37 killing Section 17. It does not; it amends it, as he went on to outline.

Lord Hannay of Chiswick: I am grateful to the Minister for giving way. Could she be clearer about this correspondence with the Commission? The Minister said in the meeting we had yesterday, and again just now, that a letter went to the Commission in October, to which there has been no reply. It is perhaps not surprising, since the Commission does not have a mandate to negotiate until after we have left the European Union. Perhaps that is a perfectly innocent explanation,  but surely the amendment being moved will actually strengthen the Government’s hand when they come to negotiate in March or April, by demonstrating the high priority which Parliament gives to it?

Baroness Williams of Trafford: The reason we have not had a reply is probably, as the noble Lord pointed out, to do with the fact that we have a new Commissioner. I do not agree with the noble Lord’s point—this amendment ties the Government’s hands in negotiation, and we do not wish to see that. We want to articulate our commitment through the manifesto and in Clause 37.

Lord Kerr of Kinlochard: I am not quite clear on how it ties the Government’s hands. If we leave what is now on the statute book in place, there is an obligation on the Government to seek to negotiate. The Government say that they have already started seeking to negotiate, so I am not sure how it ties their hands.
I am left suspicious. I am with the noble Baroness and am prepared to agree that policy has not changed. I reject dog whistles and dead cats, and I believe the Government’s policy has not changed. What bothers me is that I do not know what priority they attach to it in the coming negotiations, and I fear that we are into bargaining chip country, which is really offensive.

Baroness Williams of Trafford: The fact that the Home Secretary wrote to the Commission underlines our commitment, as does the fact that we put it in the manifesto and in Clause 37. The amendment to Section 17, to which the noble Lord referred, was an instruction to the Government, and I do not think that the Government should be bound by that.
I want to pick up on the noble Lord’s point about bargaining chips. Section 17 of the 2018 Act talks about seeking to negotiate. In one context—the way in which the noble Lord, Lord Dubs, puts it—that is noble, and I have absolutely no criticism of his intentions. On the other hand, when the Government say that they will write to the Commission and seek to engage with the EU in the coming year, that is seen as using children as a bargaining chip. I am not entirely sure how the Section 17 amendment, which talked about seeking to negotiate, and what the Government are proposing, which the noble Lord feels very sceptical about, are in any way different when it comes to bargaining chips.

Lord Kerr of Kinlochard: If the Government say, as they did on Monday night, in terms, that that amendment will not do because it is vital that the Government are not legally constrained in these discussions, that seems to imply that the Government might not pursue this point if the EU 27 decide to strike some sort of bargain with us which entails our not pursuing this point. If the statute book remained unamended—if the 2018 Act, which binds the Government only to seek to negotiate, remained in force—in what way would the Government be legally constrained unless they intended to negotiate in bad faith, which I do not think is the case, or to regard this as a lower priority, as a card that could be played? I find that very offensive.

Baroness Williams of Trafford: I would find it offensive if the Government saw children as bargaining chips. I do not think that any Member of this House or the other place sees a child as a bargaining chip. The Government are seeking to undertake an arrangement in which there is reciprocity. It makes absolute sense that we have reciprocal arrangements with Europe. We might be leaving the EU but we are certainly not leaving Europe, and children here will have family in the EU, just as children in the EU will have family here. We are seeking reciprocity, and Dublin III, as my noble and learned friend said, will be ongoing to the end of the implementation period. Please let us have no more comment about bargaining chips, because the legislation seeks to do the best by all children, whether they be in the EU or the UK.

Baroness Hamwee: Before the Minister moves on, I do not understand the answer to the noble Lord, Lord Kerr, although perhaps reading it will help. None of us wants to think the worst of the Government over this matter. It might be helpful if noble Lords could see a copy of the letter that went to the Commission in October. It has been referred to several times but I do not think that it has been seen by any noble Lord.

Baroness Williams of Trafford: I am not sure that I can give that undertaking but I will certainly request it. I will also come on to the noble Baroness’s question about the words “best interests” appearing in subsection (1)(a) but not in (1)(b). The phrase “equivalent circumstances” in subsection (1)(b) duplicates that. She might like to take a look at that and, if she is not content, I will be happy to go through it with her.
The noble Baroness, Lady Sheehan, talked about the gap, and my noble and learned friend Lord Mackay pointed out that Dublin III will exist until the end of the implementation period. My noble friend Lord Elton asked for the definition of “relative”. I think that there has been another misunderstanding—that all the relatives were listed in Section 17 but do not appear in Clause 37, although they do. A relative in relation to an unaccompanied child means
“a spouse or civil partner of the child or any person with whom the child has a durable relationship that is similar to marriage or civil partnership, or … a parent, grandparent, uncle, aunt, brother or sister of the child”.
That is quite an extensive list and I hope that that helps my noble friend.
I shall finish on the words of my noble and learned friend Lord Mackay. Section 17 in and of itself gives no rights to children. Through Clause 37 we are attempting to lay out our intentions. We have done so in the manifesto and have already started talks with the EU on this subject. Our commitment to children has not changed.

Lord Dubs: My Lords, perhaps I may say a few brief words. I am grateful to all noble Lords who have taken part in this debate, which has been quite illuminating in the main, but perhaps I may comment on two or three specific points.
First, I want to refer to what the noble Baroness, Lady Nicholson, said. I very much respect her important work with Save the Children and other organisations  overseas, but I think she is quite wrong on the trafficking argument. Where there are no legal routes to safety, people will allow themselves to be trafficked and will come illegally. Surely, by having legal routes to safety, we are making the position of traffickers much more difficult and making it much easier for people to achieve safety. Therefore, I am sorry but I do not agree with her on that.
Perhaps I may also return to the point that the noble and learned Lord, Lord Mackay, made. I do not have the wording of Section 17 of the 2018 Act in front of me but it has been referred to. It says that the Government should seek to negotiate on a particular basis. We have already talked about Clause 33 of this Bill, which would add something to the 2018 Act. It says:
“A Minister of the Crown may not agree in the Joint Committee to an extension of the implementation period.”
That is telling a Minister of the Crown exactly what he or she may or may not do, which is totally at variance with the argument that we have heard on Clause 37. I do not understand. On the one hand, the Government are saying in their own Bill that Ministers may be told what to do; on the other hand, they are using that as an argument against my amendment.
I am sorry to quote the Minister’s letter again but one paragraph seems to be at variance with other points and I wonder whether the Minister would like to withdraw it. It includes the words,
“so that the traditional division between Government and Parliament be restored”—
that is, by removing Section 17—
“and the negotiations ahead can be carried out with full flexibility and in an appropriate manner across all policy areas.”
That goes a lot wider than what we have been talking about tonight. It seems to me that this is meant to talk about some relationship between government and Parliament, which in any case Clause 33 disproves, and it refers to
“an appropriate manner across all policy areas.”
I am sorry but I cannot interpret that in the way the Minister suggests.
I want briefly to make two or three other comments. I agree that the manifesto talks about a commitment to refugees but it says nothing about child refugees. It says nothing at all that would enable the Government to invoke the Salisbury convention against my wish to remove Clause 37 from the Bill. If the Minister would like to meet me to talk about local authorities, I would be very happy to do so. I know that local authorities are very helpful. I know of Northern Ireland organisations that will want to help now that the Government there has been restored. The debate is going on in the Channel Islands and the Isle of Man, although no decision has been made there yet. It seems to me, however, that there are more local authorities. In addition, Safe Passage, one of the NGOs with which I am working closely, has written to all local authorities and we have got quite a lot of positive answers. This shows that local authorities are willing to take more.
When we debated Section 67 in 2016 and the amendment that I put forward about child refugees with no people here, there was a fierce battle. I was  asked time and again to withdraw my amendment. The Home Secretary asked me to withdraw my amendment. It got through, despite the Government’s wishes, and it got through the other House, despite their wishes. Then we had the amendment to the 2018 Act that we are talking about now. Again, there was a big vote fairly late in the evening; the Government did not want it. In opposition, we had to argue for amendments on behalf of refugees and now the Government seem to be taking credit for that. I am sorry, but that is not the way the world has been. I appreciate that the Minister is totally sympathetic to refugees, but that is not how the Government have behaved. They have resisted all these amendments and all we have in opposition is the chance to move amendments in the hope of making our point. That is why we have had these arguments.
I shall not press this issue tonight, but particularly in the light of the discussion, I might wish to return to it on Report.
Clause 37 agreed.

Amendment 30

Lord McNicol of West Kilbride: Moved by Lord McNicol of West Kilbride
30: After Clause 37, insert the following new Clause—“Publication of further legislation relating to EU exit(1) The Secretary of State must, within the period of three months beginning with the day on which this Act is passed, publish draft Bills relating to the—(a) agricultural arrangements,(b) employment rights,(c) financial services legislation,(d) fisheries arrangements,(e) healthcare arrangements,(f) immigration arrangements for EU nationals,(g) monitoring and enforcement of environmental protections, and(h) trade remedies arrangements,that will be in effect in the United Kingdom after IP completion day.(2) When publishing these draft Bills, the Secretary of State must make a statement outlining the steps they will take to seek the timely passage of such legislation before IP completion day.”Member’s explanatory statementThis amendment would require the Government to bring forward versions of the Brexit legislation published but not passed during the last two parliamentary sessions, as well as requiring Secretaries of State to outline how this legislation will be passed before the end of the implementation period.

Lord McNicol of West Kilbride: My Lords, I thank the noble Baronesses, Lady Ludford and Lady Jones, and the noble Viscount, Lord Hailsham, for adding their names to this amendment. If passed, it would require the Government to bring forward versions of the Brexit legislation published but not passed during the last two parliamentary sessions.
During the 2017 to 2019 Session, the Government published a variety of Brexit Bills. These often stalled in the Commons due to the Prime Minister’s lack of a majority and ultimately fell when the parliamentary  session ended. These pieces of legislation are listed in my Amendment 30. They covered agricultural arrangements, employment rights, financial services, healthcare arrangements, immigration arrangements for EU nationals, monitoring and enforcement of environmental protection and trade remedies arrangements. These are vital areas where businesses and the country need clarity on the future direction of travel. These Bills have not yet resurfaced and it is not clear what form they will take once they are published.
Many noble Lords from across the House—from the Government, the Opposition, the Liberal Democrats and the Cross Benches—spent many hours debating, discussing, negotiating and voting on complex details relating to these areas. For example, in relation to trade, we do not know whether the new trade Bill will include the scrutiny provision previously inserted by your Lordships’ House. We do know that the Bills are coming because they were reannounced in the Queen’s Speech, but it is not yet clear when we will see them and what their timetables will be. Amendment 30 requires the Secretary of State to outline how the legislation will be passed before the end of the implementation period.
This House has agreed to consider the Bill before us over the next few days on a truncated timetable due to the pressing need to ratify the UK-EU withdrawal agreement, and we understand that. However, I hope that the Minister can assure noble Lords that this truly is an exceptional case rather than one that sets a precedent for Bills in the year or 11 months ahead. I know that the Minister will resist this amendment, but I hope that, in doing so, he will outline approximate timetables for these Bills, including giving an indication of whether any of them will begin in your Lordships’ House.
In the past, the noble Lord, Lord Callanan, has refused to be drawn into such debates, simply stating that all required legislation will be passed by the relevant deadlines. As he has been reminded several times over the last few days, the implementation period will come to an end in just 11 months’ time. Now is the time for the Government to provide more detail and instil some confidence that proper time for debate and deliberation will be given and that we will not, in this House, hear the tired old argument that dissent and debate have to be stifled to get Brexit done. These base arguments—as we have heard many times over the last three days—try to remove from this House its function as a revising body where we have often brought good sense to help ailing or deficient Bills. I beg to move.

Lord Warner: Perhaps I might make a brief interjection. Following on from yesterday’s discussion on immigration, many of us were left a little uncertain as to what the Government were going to do with their new immigration system. So it is very important that we come back to the detailed legislation on immigration as quickly as possible.

Baroness Bennett of Manor Castle: My Lords, my noble friend Lady Jones was absolutely delighted to sign this amendment. I know that she, before I arrived in this House, did a great deal of work on many of the  Bills referred to here. Your Lordships will all remember to some degree being a student at school, university or college, and that last-minute rush to write the essay. I am afraid that we have seen far too much of that kind of operation from the Government. Under normal conditions, the timetable here in this amendment would be a huge rush, but what we are saying is, “Let’s not have an even bigger rush than this provides.” These Bills have appeared in three Queen’s Speeches; surely they are oven-ready by now and we could have them very soon. They are going to be big meals that require lots of digestion. Please let us have a timetable that is clear, so people know where they are going.
My noble friend Lady Jones asked me to mention the latest reincarnation of the Environment Bill. We need to know when the environment enforcement body will be established. We have been told that it will happen as soon as possible; surely that has to be now.

Lord Callanan: My Lords, I am grateful to the  three speakers that we have had in this debate on Amendment 30: the noble Lord, Lord McNicol, the noble Baroness, Lady Bennett, and, briefly, the noble Lord, Lord Warner. I can be brief on this one. The procedures for introducing and scrutinising Bills are, of course, very well established, and those procedures are not without reason. All the Bills mentioned will be introduced with adequate time for scrutiny. To ask for so many Bills to be published in draft is unprecedented, as it is for the Government to commit to a statement on the amount of time each Bill might spend in Parliament. Let me reassure noble Lords directly, however, that this Government are committed to ensuring that all the necessary legislation is passed by the end of the implementation period.
As the noble Lord intimated in his speech, versions of the Bills covering many of the areas noted in his amendment have already been published in previous Parliaments and are publicly available for study. Others were mentioned in the Queen’s Speech. However, I am sure that the House can appreciate the tremendous amount of work being done to make sure that these Bills best achieve their policy aims. In some cases, this means that the Bills will differ slightly from the previous versions. I can assure the House that the Government are committed to proper scrutiny and that we will balance the need to have the necessary Bills in place by the end of the implementation period with adequate time for Parliament to scrutinise them.
I suspect that the noble Lord got the answer he was expecting, so I hope he will feel able to withdraw his amendment.

Lord McNicol of West Kilbride: My Lords, I thank the noble Lords who have taken part in this very short debate, and I thank the Minister for his response. The reason for launching this is that we want to secure proper time for scrutiny, debate and discussion. The Trade Bill was my first Bill in this House. My noble friend Lord Stevenson and I put a lot of time and energy into that Bill and this House made some good, sensible changes to it. It would be a shame for that to go to waste. I beg leave to withdraw the amendment.
Amendment 30 withdrawn.

Amendment 31

Baroness Jones of Whitchurch: Moved by Baroness Jones of Whitchurch
31: After Clause 37, insert the following new Clause—“Non-regression in relation to environmental and animal welfare mattersAfter section 16 (maintenance of environmental principles etc.) of the European Union (Withdrawal) Act 2018 insert—“16A Non-regression in relation to protected matters(1) Any action taken by or on behalf of a Minister of the Crown under—(a) this Act, or(b) any other enactment, for the purposes of or in connection with the withdrawal of the United Kingdom from the EU,is unlawful if it is intended to have, or in practice is reasonably likely to have, a regressive effect in relation to the protected matters.(2) A public authority exercising a function in respect of a protected matter must not exercise that function in a way that is intended to have, or is reasonably likely to have, a regressive effect.(3) Regulations may not be made under this Act if they are intended to have, or are reasonably likely to have, a regressive effect.(4) The protected matters are—(a) the environment,(b) food safety standards,(c) registration, evaluation, authorisation and restriction of chemicals, and(d) animal welfare.(5) For the purposes of this section an effect shall be considered regressive if it—(a) reduces a level of protection provided for in retained EU law, or(b) weakens governance processes associated with that protection.””Member’s explanatory statementThis amendment prevents Ministers from using powers relating to EU withdrawal to diminish protections in retained EU law relating to the environment and animal welfare.

Baroness Jones of Whitchurch: My Lords, I am grateful to the noble Lords who have added their names in support of this amendment on a cross-party basis. It would ensure that, post Brexit, the actions of Ministers and public bodies must not have a regressive impact on the environment, food safety, REACH and animal welfare. The amendment is necessary as the Government have seen fit to remove the provisions previously agreed in the 2018 withdrawal agreement, which provided for a legally binding commitment to non-regression in most areas of environmental law. The Government have said they remain committed to the principle of non-regression, so it is not at all clear why these provisions have been actively removed.
It goes without saying that there has never been a more important time for strong environmental legislation. The world is facing a climate change emergency, with global warming impacting food production, rising sea levels destroying habitats and catastrophic floods and fires threatening human life and livelihoods. The  Government have signed up to the UN climate change conference political declaration, but those promises need to be backed up by binding and robust action. The Government have said that they want an ambitious environmental programme—indeed, the Conservative manifesto promised to legislate for high standards of environmental protection—so it seems strange that their first act is to water down a Bill that would have helped to achieve those high standards. Our amendment would put the non-regression principle back into the Bill where it belongs, and where other environmental principles remain via the withdrawal agreement.
The great advantage of a non-regression clause is that it would give reassurance for the longer term. It would protect current and future generations against the weakening of environmental standards once the issue drops out of the headlines and out of the list of government priorities. It would also help the Government to hold public bodies to account in achieving their environmental standards.
It is still not clear why the Government have taken the clause out of the Bill. If, as the Minister claimed in the Commons, the Government are committed to non-regression, why not leave it in? If the Government plan to put it in the environment Bill instead, what is the harm in having it in both pieces of legislation? If, as the Minister claimed in the Commons, the plan is to diverge from EU environmental principles and go it alone, who will judge whether the outcome will be as good as the environmental benefits that we have enjoyed in the past or that we should have enjoyed in the future?
As I said at Second Reading, over the years our environment has hugely benefited from EU directives and regulations, with over 80% of our environmental legislation derived from the EU. It is the main reason our habitats and birds have been protected and our water, air and soil quality have improved. The Government are expecting us to take a leap in the dark with their commitments to becoming a world leader in environmental protection outside the EU regime. If they are so committed, it is still not clear why they cannot accept a non-regression clause. Surely that is the minimum promise that they ought to be able to make if they are so ambitious for the future.
I hope the Minister will feel able to support our amendment. If not, I hope he can spell out in some detail what kind of non-regression guarantees are being proposed for the environment Bill. These questions were posed by a number of noble Lords at Second Reading, so far without a response. I hope that on this occasion the Minister can rectify that and give us some guarantees. I beg to move.

Lord Randall of Uxbridge: My Lords, I was very happy to add my name to this amendment because the whole question of environmental standards and what will happen after we leave the EU is something that concerns many on all sides of the House, as well as the general public. The environment, as the noble Baroness opposite said, is very high on people’s agenda.
I put my name to the amendment because, like the noble Baroness, I wondered why this issue was not going to be part of the Bill. However, I have to say that  I have spent some time in detailed discussions with the Secretary of State and Ministers down the other end as well as with Ministers in this Chamber. I do not think I could ever be described as naïve, although I have been led astray sometimes by government Ministers on all sides, but I do not doubt for one minute this Government’s thorough commitment not only to maintaining the environmental standards of the EU but to going beyond that. This is a very useful exercise to reinforce to my noble friends on the Front Bench that no excuse will be taken if those standards are not maintained when the environment Bill comes forward, and I will be looking for improvement.
With that in mind, I have always regarded this more as a probing amendment—I have learned today that in Committee that tends to be what happens—but I do not at all regret adding my name to it because this is a matter of great importance.

Baroness Bakewell of Hardington Mandeville: My Lords, I rise to speak to Amendment 31, to which I have also added my name. I fully support the comments made by the noble Baroness, Lady Jones of Whitchurch. Many contributions today have been extremely legalistic, but for me this amendment is much simpler.
Many noble Lords will be wondering why it is necessary to have this amendment in the Bill. The Government have committed not to compromise on environmental standards. An undertaking was in the previous withdrawal agreement Bill but was removed from the Bill that passed through Parliament in December 2019. If the Government have committed not to compromise, why was it necessary to remove this undertaking from the Bill? Despite being asked, the Government have provided no clarity on how environmental standards are to be protected.
As we can see from what is happening in other parts of the world, not least Australia, the environment is very fragile. Animal and plant species are constantly under threat from the effects of what used to be known as freak weather conditions. These excessive droughts, floods and temperature rises are having a devastating effect on animals and humans alike. They are no longer occasional disaster events but have become yearly occurrences. Unless the UK engages completely with preserving, maintaining and enhancing our environmental standards, we are likely to see an increase in flooding and fire damage in our villages and on our moors.
Ensuring food safety should be paramount when the Government come to broker trade deals with countries outside the EU. The UK consumes large quantities of chickens, and I am sorry about the next bit. Currently we import chicken breast meat and export darker leg meat. This trade currently goes to Europe, where we know standards of food protection are the same as ours. We could be self-sufficient in chickens if the British housewife could be persuaded to consume more dark meat and slightly less breast meat.
On a purely personal note, I am extremely reluctant to find myself having to buy chlorinated chicken that has arrived from America, be it whole chicken, breast or leg meat. A lowering of food safety standards has  had dramatic effects on our country in the past; the BSE crisis springs to mind.
As stated at Second Reading, the UK currently has high standards in habitat protection and product safety. These standards have been developed with our European neighbours so that we now benefit from cleaner beaches, safer food and the best regulation of chemicals in the world. While these will pertain at the point of exit, are we really going to leave ensuring the maintenance of these standards to the joint committee? We have heard that the joint committee has the ability to amend the withdrawal agreement itself should it choose to do so, with no parliamentary oversight.
During the lengthy process since the result of the referendum was announced, there have been many cries of the British Parliament taking back control of what happens in this country. However, as the right reverend Prelate the Bishop of Leeds said on Monday, parliamentary sovereignty has not been returned to the UK with this Bill. The sovereignty appears to have been handed to the joint committee.
Having spent many, many weeks and months last year, along with the Minister, debating SIs to move EU law into UK law to protect animal rights and food safety, and to ensure the safeguarding of plant health and species and the licensing and restriction of chemicals, I am mystified by why the Government do not now want to protect these standards in perpetuity to safeguard the population and to ensure that they enjoy, into the future, the environmental standards they currently live under.
It is essential that this proposed new clause on non-regression is added to the Bill to safeguard future generations. The answer may be that this will be covered by the environment Bill—I wait to see. I have to admit to being somewhat disappointed on Monday by the winding speech from the noble and learned Lord, Lord Keen of Elie, who is not in his place. Despite over 10 speakers mentioning environmental standards at some point in their speeches, the noble and learned Lord made no mention at all of this subject in his remarks. It may be that this area is not his forte. I hope that today we will get the reassurances that we are looking for.

Baroness Bennett of Manor Castle: My Lords, from comments I have made on other matters, your Lordships’ House will know that democracy is one of my pet concerns. When we are discussing this excellent amendment from the noble Baroness, Lady Jones of Whitchurch—I endorse everything she said in introducing it—it is important that we make clear what we are talking about. Non-regression has now become part of our common parlance in your Lordships’ House and perhaps in the other place as well, but what does that actually mean? If we are looking for a definition in commonplace terms, I would suggest that it means not losing the hard-fought gains that we have won over decades. The Green Party and green campaigners have fought very hard for the level of standards that we now enjoy under the European Union. We have often been critical of those standards and said they  should be higher, but we know they are much higher than in many other jurisdictions, most notably the United States of America—with which, of course, we know the Government are very keen to get a trade deal.
A few days ago, I asked your Lordships to think about the climate strikers, the young people who have been out on our streets, who will no doubt be out on our streets again. I ask noble Lords who want to reject this amendment—and the Government, if they want to reject it—to think about how those people will feel when they are told that what has already been won, which they would say is inadequate, will not be guaranteed. I think we know what their reaction would be.
With all the Henry VIII, secondary legislation making and judicial erasure powers that the Bill currently provides, the Government are going to find themselves in an unprecedented position to rewrite enormous parts of UK law at will. We are told that, “There is no intention to reduce standards; we’re going to try to improve them.” Of course I applaud those words, but if that is the case, why not accept this amendment? It should not be contentious, just as provisions to protect workers’ rights, which are part of the same kind of package, should not be contentious.
We have all had a long day, but I think everybody in this House from all sides has at some point fought to support some protection covered under EU legislation. Please let us protect and keep them all and not lose the work of the past and of decades of campaigns.

Baroness Parminter: My Lords, I rise to support this cross-party amendment in its entirety, but particularly to cover the issues I raised on Monday at Second Reading and, if I may, to have the right of reply to the noble and learned Lord, Lord Keen, who made reference to my speech from earlier in the debate in his closing remarks. He said:
“The noble Baroness, Lady Parminter, referred to animal welfare. At the moment, we cannot prohibit the movement of live animals because of EU law. But when we leave, let us hope that we can address that, because we have expressed an intention to do so.”—[Official Report, 13/1/20; col. 556.]
That is factually correct and I entirely applaud the Government’s intention of doing something about that important issue. However, with the deepest respect for the noble and learned Lord, that is completely irrelevant to the point I made. There is nothing in a non-regression clause which stops the Government raising standards. What it does do, as other noble Lords have rightly said, is ensure that standards are not lowered. That is the issue we are collectively concerned about as we face the worrying prospect of these free trade agreements, with all bar one of the countries proposed having lower welfare standards than ourselves.
My noble friend Lady Bakewell of Hardington Mandeville talked about chicken legs and breasts. I want to talk a little about eggs because, as it stands at the moment, the United States of America has no standards whatever on the welfare of hens used for laying eggs. Therefore, if we allow the American market access to ours, we will face eggs coming in to be used in food products with standards far lower than those produced by British farmers. Our farmers will rightly   argue that their welfare and production standards are higher and cost more and that they are therefore at a competitive disadvantage. They will press the Government to reopen the battery cage directive, which has been with us for so long as part of our membership of the European Union and guarantees higher farm welfare standards.
If the Government were to lower those standards, I would like to ask the Minister whether my understanding of the following is correct. Given that we have gone through this process of nationalising all this EU legislation through statutory instruments, sitting through hours and hours in the Moses Room, is it correct that, if the Government were to lower our animal welfare standards for battery hens, for example, the Government would need only to introduce a statutory instrument and would not require primary legislation? That is my understanding. It is a real worry to those of us right across this Chamber who have, as the noble Baroness, Lady Bennett, just said, fought so hard and for so long for high animal welfare standards that those could be lost by a simple statutory instrument.
The right reverend Prelate the Bishop of Worcester, who is not in his place, spoke movingly, in the debate on the amendment from the noble Lord, Lord Dubs, about the Government needing to set out their vision for Britain in the post-Brexit world. He articulated it very well. What is the Government’s vision for Britain? If they want Britain to be a world leader in animal welfare, they have to demonstrably deliver that through all their legislation, trade deals and marketing. Look at the example of New Zealand, which has said that it wants to be a world leader and is a world leader—it has done just that. This is in every piece of legislation and every trade deal and it is in their marketing strategy.
This is the first piece of legislation of the new Government which mentions animal welfare and yet, by not accepting a non-regression clause, they are basically saying that standards could be lowered as  a result of trade deals in the future. Therefore, it  begs the question: how will the Government guarantee  that animals will not suffer lives compromised by lower animal welfare standards if the Government will not accept a non-regression clause in the withdrawal Bill?

Lord Gardiner of Kimble: My Lords, I am grateful to the noble Baroness, Lady Jones of Whitchurch, and other noble Lords for raising issues which come within Defra’s responsibility. I entirely respect the sincerity of all the points that have been made by noble Lords.
The UK has a long and proud history of high standards for environmental protection, including chemicals, food standards and animal welfare. It is of the utmost importance that these are maintained as we leave the EU. The Government have been clear that  we will not weaken protections in these areas when we leave, but rather we will maintain and enhance our already high standards.
This Bill is focused on putting the withdrawal agreement into domestic law. This amendment is about what happens to our environmental policy and others after our exit from the EU. We do not believe that that is appropriate for this Bill.
These matters were debated extensively in the passage of the 2018 Act, when the Government were clear that the regression of the type the noble Baroness fears would not be within scope of the key Section 8 power of the 2018 Act. Those Section 8 powers can be used only for the purposes of correcting deficiencies that arise as a consequence of the UK’s withdrawal from the EU. The 2018 Act does not provide a power to change laws simply because the Government did not like them before exit. The Government cannot use the powers for the purposes of simply rolling back standards and protections.
Where substantive policy change is required, appropriate legislation will be brought forward. I underline this when I say that, if a Government were to introduce legislation to reduce protections, Parliament would be able to have its say at that point. This would allow for more effective and tailored scrutiny. In any case, I want to assure the noble Baroness and all noble Lords who have spoken—as I have done many times from this Dispatch Box—that this Government have absolutely no intention of introducing legislation that would have that regressive effect.
As I have said, the UK has this long and proud history of environmental protection. The UK was the first country in the world to introduce legally binding emission reduction targets. In 2019, the UK became the first major economy in the world to set a legally binding target to achieve net-zero greenhouse gas emissions. The UK is also the top performer in the EU on resource efficiency and is demonstrating leadership on the circular economy and smart taxes to reduce landfill.
The noble Baroness, Lady Bakewell of Hardington Mandeville, was absolutely right in talking about the world’s fragility, and I think we are absolutely seized of that imperative. That is why the Government will shortly introduce the environment Bill—I say this specifically to my noble friend Lord Randall but also to the noble Baronesses, Lady Jones of Whitchurch and Lady Bakewell of Hardington Mandeville—which is about strengthening environmental protections. That Bill will enshrine environmental principles in law and will also include measures to improve air and water quality, tackle plastic pollution and restore habitats. I should say, going off script, that we may have been subject to all sorts of EU directives and regulations, but we, the EU and the world have to do a great deal more. The point about that Bill is that it will create legally binding environmental improvement targets and establish a new independent office for environmental protection to hold the Government to account.
We are planning for the OEP to be operational from 1 January 2021. That may slightly answer the question the noble Lord, Lord McNicol, posed in an earlier debate. I want to emphasise that there will be no governance gap. This will collectively ensure that environmental ambition is at the heart of government once we leave. I am in absolutely no doubt that all of  your Lordships who have spoken—and many more—will take much interest in that Bill, and I think that is tremendously important.
Regarding the UK’s effective regulatory system for management and control of chemicals, as mentioned in the amendment, this is partly based on the REACH regulation, which is widely seen as a gold standard worldwide. The environment Bill will have provision to amend REACH to make sure our chemicals management remains fully up to date. Any change must remain consistent with the fundamental aims and principles of REACH, including the precautionary principle. There will also be a series of protective provisions that cannot be changed, such as the last-resort principle on animal testing—I think that is a matter the noble Baroness, Lady Parminter, has expressed concern about before, so it is important to say that.
The Government have also been clear that we will continue to be a world leader in animal welfare by maintaining and strengthening the UK’s already world-class welfare standards. The withdrawal Act will bring on to the UK statute book all directly applicable EU food safety and animal welfare standards. Our current high standards, including import requirements, will apply when we leave. To ensure this will be the case for food safety standards, Defra has worked closely with the Food Standards Agency and the Department of Health and Social Care. The Food Standards Agency has increased its capacity and capability to conduct food and feed safety risk assessments, as well as to provide risk management advice. Risk management decisions will continue to be based on independent and robust scientific evidence.
I also say to the noble Baroness, Lady Bakewell of Hardington Mandeville, on the matter of hormone beef, that the UK has transposed the Council directive which prohibits the use of artificial growth hormones in both domestic and imported products. This will continue when we leave.
On the issue of chlorinated chicken, this will come across through the European Union (Withdrawal) Act 2018. No products other than potable water are approved in the EU to decontaminate poultry carcasses. This will be the case in the UK when we leave the EU.
I also say to the noble Baroness, Lady Parminter, that we will not compromise food safety in pursuit of a trade agreement. Maintaining safety and public confidence in the food we eat is of the highest priority, and any future trade deal must work for UK farmers, businesses and consumers. Any new products wishing to enter the UK market must comply with our rigorous legislation and standards.
The noble Baroness, Lady Parminter, spoke of vision—that is a good word. I think vision, ambition and objectives are all important, and we should work upon them. It is the duty of government to bring these forward. This Government have already taken action to improve our already high standards of animal welfare. This has included: a ban on wild animals in travelling circuses; banning the commercial third-party sale of puppies and kittens; and making CCTV mandatory in slaughterhouses in England.
We will go even further. This Government will  also legislate on animal sentience to ensure that  any adverse impacts to the welfare of animals are  appropriately considered in government decision-making and implementation and introduce tougher sentences for animal cruelty. We are working on the fact that it is not satisfactory that animals endure these excessive long journeys to go to slaughter and to fattening. We will also consult on the keeping of primates as pets.
The noble Baroness asked for some detail, and I think she may be on the edge of her seat.

Baroness Jones of Whitchurch: I am grateful for everything the Minister has said. I did ask—I do not know whether he specifically addressed this point—whether there will be a general non-regression clause in the environment Bill. He has talked about there being legally binding targets for improvements in some areas. I understand all of that—the Government will have improvements on air or water quality or whatever it might be—but the great advantage of a generalised principle of non-regression is that it applies to everything: not just the Government’s priorities today but the things that are not sexy today and that might be on the back burner. It encompasses everything, and I am not sure whether the Minister has given me that reassurance. Maybe it was buried away in his script, but it would be helpful if he could say it again.

Lord Gardiner of Kimble: The environment Bill has not been published yet, but it will not be long. I am not in a position to start talking about the detail of some of the clauses tonight, but that is why I spent some time on this. I say directly that I cannot start suggesting what the clauses of the Bill will be about, because I am not in a position to do so.
As I have tried to set out in this explanation, I obviously understand the points that have been made, but I am not sure I agree with all that the noble Baroness, Lady Bennett, may have said about some of these matters. Yes, of course we should endorse the work of the past, but I sometimes sense a determination that either this Government or the party I represent would find it impossible to be positive and strengthening about the subjects we are discussing. I would regret that, because the whole focus of what I have tried to explain in detail—it is why I was asked to deal with this amendment—is precisely to show that this department and the Government are absolutely committed to maintaining and enhancing our already high standards, including through the legislation which will come forward very shortly.
As regards any Section 8 regulations made under the withdrawal Act, noble Lords already have the ability to scrutinise any changes which those regulations might make to retained EU law. This Bill is a vehicle to implement the withdrawal agreement, not, in our view, to legislate for environmental policy.
I am grateful to the noble Baroness and to all noble Lords for this important debate. I have gone on rather longer than I think I was requested to because I felt it important to set out some detail on the measures that the Government will bring forward, and to highlight  what is a clear direction of travel. Our intention is to move forward. I therefore hope that the noble Baroness and other noble Lords will accept my firm commitment on behalf of the Government and the department, and that she will feel able to withdraw her amendment.

Baroness Jones of Whitchurch: My Lords, I thank all noble Lords who have spoken in support of our amendment. I should say at the outset that the Minister will know, as we have said before, that he is held in high regard by this Chamber. We obviously do not doubt his intentions and commitment on many of the things he talked about. A lot of our concerns arise not from the intentions of Defra, or even perhaps the intentions in a future environment Bill, but through the pressures which will come from elsewhere. We can only anticipate or guess those pressures at this stage—from future trade Bills and future deals that might be wanted done.
Our anxiety is not about the Minister’s good intentions; we can see what is in the Conservative manifesto and the good words that have been written about all this. Many of us have worked on a number of the animal welfare issues that the Minister talked about, so, again, we do not doubt his good intentions or his record on all that. But we are going into an uncertain future, and deals will have to be made outside our immediate remit. I suppose that is where our concern comes from.
I am particularly grateful to the noble Lord, Lord Randall, for sticking his neck out on this issue, even if he back-tracked slightly. I had intended this to be slightly more than a probing amendment, and we have had a good debate as a result of it. We want to believe in the Government’s commitments in the way that he described.
Our particular concern about non-regression, which I know that the Minister felt he could not really respond to in the detail that we would have liked, was that it would give us that underlying safety net when everything else is moving around quickly, as it will be in the next year. I am still sorry that we were not able to go as far as we would have liked on that issue. The noble Baroness, Lady Bennett, was absolutely right: these progresses in policy that we have made over the years are hard fought for and hard won, and we all hold them very dear.
I have gone as far as I can at this point in the evening in probing the Minister. We are looking forward to the environment Bill. If it is anything like the draft we have already seen, it will be a long tome and we will spend many happy hours debating it all. I hope that we will see in writing the legal commitments that the Minister implied we will get at that point, so I look forward to the publication of and debate on that Bill. In the meantime, I beg leave to withdraw the amendment.
Amendment 31 withdrawn.

Amendment 32

Lord Stevenson of Balmacara: Moved by Lord Stevenson of Balmacara
32: After Clause 37, insert the following new Clause—“Reporting of progress on achieving a data adequacy rulingAfter section 15 of the European Union (Withdrawal) Act 2018 (publication and rules of evidence) insert—  “15A Reporting of progress on achieving a data adequacy ruling(1) A Minister of the Crown must, before 31 June 2020 and every two months thereafter until IP completion day, make a statement setting out the status of Her Majesty’s Government’s discussions with the EU on a future data adequacy ruling.(2) The statement under subsection (1) must include—(a) a report of the discussions carried out to date or since the last report,(b) a declaration of whether, in the Minister’s opinion, a data adequacy agreement can be secured from the European Commission in order to take effect immediately after IP completion day, and(c) the policy of Her Majesty’s Government in the event of a data adequacy agreement not being secured to take effect immediately after IP completion day.””Member’s explanatory statementThis amendment requires a Minister to provide updates on the UK’s discussions with the EU regarding the granting of a data adequacy decision.

Lord Stevenson of Balmacara: My Lords, Amendment 32 is in my name and I thank the noble Baroness, Lady Ludford, for her support. I am also pleased to see the new Secretary of State in her place. Although I think she will not respond to this debate, I am sure she is learning from the process and we look forward to further interactions with her in due course, not least the opening Question Time, which I see is now on the timetable—it should be fun.
This is a probing amendment, by which I seek to draw attention to two things. One is the importance of the personal data sector; that may not need to be said, but it is worth reminding ourselves of its importance. The other is the implications for our economy if the Government are unable to persuade the EU to agree a data adequacy decision within the tight timetable that we have. But I also want to raise concerns about the future of this sector in light of the Government’s plans for further changes to the law, some or all of which might reduce the chances of us obtaining a positive data adequacy outcome.
The facts are that 43% of EU tech companies are currently based in the UK and 75% of the UK’s personal data transfers are with EU member states. It is therefore vital that a data adequacy agreement is reached within the timescale proposed under the withdrawal agreement. But quite apart from the timescale, achieving a positive adequacy decision for the UK is not as uncontentious as the Government seem to think. For a start, any adequacy agreement requires the European Commission to consider a wide array of issues, such as the rule of law, respect for fundamental rights, and legislation on national security, public security and the criminal law in that country. As was pointed out during the passage of the Bill, the surveillance practices of the UK intelligence services may indeed jeopardise a positive adequacy decision tout court. But there are particular difficulties and it is worth reflecting on these.
Further modifications of the GDPR, as it was legislated for, are possible in the UK after Brexit using the powers in the European Union (Withdrawal) Act in areas such as rights, principles, definitions, powers  of regulators, and fines. This means that the European Commission will have concerns on how secure the adequacy decision will be. Can the Minister say what guarantees will be under consideration in these areas? One problem with the UK’s version of the GDPR is that the Government resisted calls from this side of the House to include the recitals in the legislation. However, somewhat ironically, much of the ICO guidance on the GDPR is linked to the recitals and references are made to all of them. How will the Government square that anomaly whereby, after December 2020, those recitals will relate to the EU version of the GDPR but not specifically to the UK version? It has been argued that several of the exemptions in Schedules 2 to 4 to the DPA 2018 are not mirrored in other EU member states’ national data protection law, such as immigration and national security references, which might diminish the rights and freedoms of EU nationals in the UK. Can the Minister say how the Government will resolve this?
As was discussed at length during the passage of the Bill, the Investigatory Powers Act 2016 and the amount of bulk personal data collected routinely in the UK are generally accepted as a problem. Do the Government have any thoughts on how to address these issues? The status of codes of practice produced by the Secretary of State under the Digital Economy Act 2017 and the framework for data processing by government raises the question of whether the ICO is an independent regulator. Does the Minister accept that this may cause problems for the data adequacy ruling?
There are important provisions within the withdrawal agreement in relation to data protection over the transition period and I accept those. They include the fact that the GDPR and related EU privacy laws will continue to apply in the UK during that transition period and that there will be no immediate change in UK law on exit day. The UK must continue to interpret and apply the GDPR and related EU laws consistent with wider EU legal principles. The UK courts will therefore continue to apply decisions of the Court of Justice of the European Union and changes in EU law through the transition period, though presumably there will not be that many. The CJEU will continue to have jurisdiction in the UK, and decisions on the GDPR may be referred to the CJEU during the transition period.
We have all that as a base, but what happens if either we find that the EU will not grant an adequacy agreement or that it is significantly delayed? The current thinking is that impacted organisations—there will be a lot of them—will need to adopt specific legal safeguards to support the lawful transfer of personal data to the UK and that they will use standard sets of contractual terms and conditions, which the sender and the receiver of the personal data must both sign up to. But SCCs cannot be used to safeguard all transfers, and redress would of course be a civil and not a criminal matter in the courts, with all that that implies. The question is whether the Government have in mind to legislate to provide certainty for this possibility. Can the Minister comment on that?
The Government have ambitious plans, which we broadly support, to respond to increasing concern about the use and misuse of personal data, particularly as these affect children, but also including online trolling, fake news and undue influence on political issues. The Government are also considering how and in what way data companies are covered by competition and other regulations that apply to media companies.
We look forward to initiatives from the CMA and Ofcom and to seeing the online harms Bill, which is to introduce a duty of care approach to statutory regulation in this area, which will transform the legal position of the big tech companies from “platforms”—which they like to call themselves—and recognise that they are active media and information companies, with the broad societal responsibilities that this must entail. These changes in approach, desirable as they are, are bound to affect our current data protection regime. Can the Minister give us more detail and assure us that this work is not under threat and will not impact on our proposed data adequacy agreement with the EU?
I have listed rather a lot of questions, probably too many for this time of night, and I am quite happy to have a letter from the Minister if she would feel more comfortable with that, but I would like some general shape to her response before we let her go this evening. I have outlined a range of important issues which will impact on an important sector of our economy. If the Minister accepts the broad drift of this argument, will she also agree that there is substantial interest in the sector about this? It therefore follows that my amendment, probing as it is and calling for formal Statements and reports, would be of value to all concerned. I beg to move.

Baroness Ludford: My Lords, I support this amendment, of which I am a co-signatory. I very much agree with what the noble Lord, Lord Stevenson, said, though I fear I might add a few questions for the Minister. As he said, free data flows across borders are an essential foundation of many key sectors of our economy, not just the tech industry as such but manufacturing, retail, health, information technology and financial services. It is vital that the free flow of data between the UK and the rest of the EU continues post Brexit with minimum disruption.
The European Union Select Committee, in its recent report on the revised withdrawal agreement and political declaration, pointed out that there was a lowering of ambition in the political declaration compared to what we have now as part of the EU’s digital single market. We have free flows, whereas the political declaration talks only about the “facilitation” of data flows. That is not the same as “freedom” of data  flows. A host of organisations and the Information Commissioner have all persuasively argued that we need to ensure that our data protection legislation and practices are ruled as adequate. That is why it is so important that we get these regular reports and, as the amendment says, that we discover what the policy of HMG is if we do not have a data adequacy agreement after the end of transition.
We cannot take such a decision for granted merely because the GDPR more or less forms part of UK law. A major obstacle to an adequacy ruling is, of course, the bulk data provisions in the Investigatory Powers Act 2016, particularly in the light of the European Court of Justice decision in Tele2/Watson, the case brought by David Davis and Tom Watson over the legality of GCHQ’s retention and bulk interception of call records and online messages. That judgment ruled that UK mass surveillance laws breach the Charter of Fundamental Rights.
Just today there has been an opinion from the Advocate-General, the court’s legal adviser, who tends to get followed in 80% of ECJ cases, on a case which involves Privacy International, and a reference from the Investigatory Powers Tribunal. The Advocate-General has reinforced EU privacy law against mass retention and access to customer data by GCHQ, MI5 and MI6. I think this concerns provisions in Section 94 of  the Telecommunications Act 1984. So we may get a second CJEU ruling, which will be problematic for any adequacy ruling given the very explicit requirements of Article 45(2)(a) of the GDPR, requiring the commission to consider
“respect for human rights and fundamental freedoms”,
as well as
“national security … and the access of public authorities to personal data … and … international commitments”.
They will probably want to look at any potential transatlantic transfers agreed with President Trump.
It is already clear that many aspects of the Investigatory Powers Act fall short of satisfying the CJEU criteria. The purposes of retention are not limited to fighting serious crime, data retention is not targeted to what is strictly necessary, prior independent review or judicial authorisation is not required in all cases, and there is no provision for informing individuals.
What are the Government going to do in the area of the powers of intelligence agencies to satisfy the European Commission—and the European Parliament, where I had some experience of this, particularly in the era of the Edward Snowden revelations, when many in the Parliament were jumping up and down about GCHQ but there was nothing they could do about it while we were in the EU? Once outside, we actually get much stricter scrutiny about our interception practices than when we are inside; it is something of an irony, really. Then there is the problem about the exception for immigration data in the Data Protection Act 2018. The EU will no doubt closely monitor how the Home Office reviews settled status applications and whether data subjects can obtain full access to their personal data if there are disputes or problems about their status.
In addition, we discussed earlier today the accusation —it seems stronger than that—that the UK has illegally copied, and therefore misused, the Schengen Information System database by copying it into a national database and even sharing it with private companies. The commission report says that UK practices
“constitute serious and immediate risks to the integrity and security of SIS data as well as for the data subjects”.
That is another area where we are going to be under strict review. There is the trust issue, which we also discussed earlier today about the criminal records fiasco—I think one would have to use that word.
There are lots of questions and challenging reviews that the Government will have to answer in seeking data adequacy decisions. We need to know what steps they have taken so far to achieve this decision. Will they apply to continue to participate in the European Data Protection Board? What will they do if we get turned down for a data adequacy agreement? Anything else is second best. Have the Government thought through what their strategy will be if they do get refused? Will they change the legislation on handling personal data for national security purposes? Those are a lot of questions, but it is a very significant area of the negotiations with the EU 27. From past experience, I know that the European Commission will be very much on the ball— not least because of the eagle eye that the European Parliament will have on this area—so the Government have to be as well.

Baroness Barran: I thank the noble Lord, Lord Stevenson, and the noble Baroness, Lady Ludford, for this amendment, which seeks to add additional scrutiny to the data adequacy assessment process by introducing a bespoke statutory reporting requirement. It has certainly been very useful in drawing attention to the importance for both the UK and the EU of the UK pursuing and obtaining positive data adequacy decisions to enable the free flow of personal data after we exit the EU. It is also helpful that the noble Lord highlighted the success of our tech sector, which I thoroughly echo. I am sure that my noble friend the Secretary of State shares that view.
The free flow of personal data is an important feature underpinning the UK and the EU’s future relationship for economic and security purposes. The UK is currently a global leader in strong data protection standards, and protecting the privacy of individuals will continue to be a priority. The noble Baroness, Lady Ludford, referred to a lack of ambition. I do not think there is any lack of ambition on the part of the Government in this area. The Data Protection Act 2018 strengthened UK standards in line with the EU GDPR and law enforcement directive, providing a unique starting point for these discussions. The UK is ready to begin the adequacy assessment process and we are pleased that the EU has committed, in the political declaration, to the Commission beginning its assessment of the UK as soon as possible after our withdrawal, endeavouring to adopt adequacy decisions by the end of December 2020.
Before I try to answer some of the questions posed, I hope it will be helpful to touch briefly on some of the preparation that has been going on in government for the last two years for this eventuality. The Government established a data adequacy negotiation hub which sits within the Department for Digital, Culture, Media and Sport. It was set up early in 2018 and includes experienced experts in both data protection and negotiation. They are ready and waiting and keen to start negotiations with the Commission now.
This amendment would introduce a bespoke statutory reporting requirement, as we heard, covering the assessment period. However, as we heard very eloquently from my noble friend Lord Callanan earlier, there is a need for flexibility of reporting during what will be at times, I am sure, sensitive negotiations. While the Government are absolutely clear in our responsibilities to keep Parliament updated on that progress, and that obviously includes your Lordships’ House, we do not believe that such a rigid regime is appropriate. Obviously, both Houses have an array of tools at their disposal to scrutinise the Government, including through their Select Committees: I refer to the recent report of the Lords EU Committee, which scrutinised the revised withdrawal agreement and political declaration and concluded that the provisions on data protection were to be welcomed.
In this context, we believe there is no need for further bespoke reporting requirements for data adequacy, particularly as setting these out in legislation may have unintended consequences, as was discussed earlier this afternoon. I shall now try to address some specific points, but I am very grateful to the noble Lord,  Lord Stevenson, for his offer that I might write to cover some of them.
In a sense, both noble Lords asked about the spirit which would underpin our approach to moving forward in these negotiations. Our aim is to try to find the right way to safeguard privacy while both promoting trade and innovation and protecting citizens from crime and terrorism. All those things are crucial to fully realising the opportunities from the data economy.
Both noble Lords asked how the Investigatory Powers Act might impact on our ability to achieve adequacy. We are confident of the standards included in that piece of legislation. We believe it provides unprecedented privacy, redress and oversight arrangements which I know both noble Lords have scrutinised in detail and which strengthen previous safeguards governing investigatory powers. Given the level of existing knowledge between ourselves and the EU of each other’s high data protection standards, we are very well placed to demonstrate that we meet and often surpass those standards.

Baroness Ludford: I am sorry to interrupt the Minister, but the fact is that the CJU has condemned our regime under the Investigatory Powers Act. The European Commission will have to take account of that, so to say that we and the EU have common high standards is not entirely borne out by the facts. The CJU has criticised, in a full judgment, the Investigatory Powers Act. How will we cope with that in the search for data adequacy?

Baroness Barran: As the noble Baroness understands very well, the adequacy discussions will be broader than strictly personal data and data protection, and will cover these issues. It will be our role to explain to and convince the EU of that, which we are confident we can do.
Similarly in relation to immigration data, which the noble Baroness raised, we believe that there are some misunderstandings about how this provision works.  Rather than going into that detail tonight, I can write to her on this. However, we are confident that the provisions included in the Act are fully compatible with EU law, although clearly we recognise that they will be closely scrutinised.
The noble Lord, Lord Stevenson, asked about the independence of the Information Commissioner’s Office. We believe that the ICO is a strong, independent and effective regulator and that its relationship with DCMS upholds that independence. We really do not have concerns that this will be an issue in relation to adequacy.
The noble Baroness referred to the opinion received today from the Advocate-General of the EU; as she said, the opinion is non-binding and the impact will happen only when we have the court’s judgment, although I note her comments on the probability of that. Since the opinion was published only a few hours ago, my officials are currently digesting it, so noble Lords will understand that our ability to comment on these proceedings is limited.
The noble Lord, Lord Stevenson, asked about recitals in the future UK GDPR which still include the EU terminology. Recitals are non-binding in both EU GDPR and future UK GDPR. They are there only as an aid to interpretation and we do not believe that the references to the EU will be confusing.
The noble Baroness, Lady Ludford, referred to the Schengen Information System. I understand that the House will discuss the UK’s access to several EU law enforcement databases on the next amendment. If she will permit it, I think it would be easier to return to that question then.
Both noble Lords asked what will happen if an adequacy decision has not been granted at the end of the implementation period. Obviously both sides have committed clearly, and it is an absolute priority, to make this work, but in the event that an agreement is not reached, the Government have already done a huge amount around no deal, working proactively to communicate companies’ responsibilities in this area—particularly in relation to smaller companies, which we know might find this more challenging. The Information Commissioner’s Office produced a portal to support organisations preparing the standard contractual clauses referred to by the noble Lord, Lord Stevenson.
I fear that time may not permit me to answer any more questions but I will endeavour to write and cover all the important points made. I hope that I have managed to reassure the noble Lord that, once adequacy discussions are under way, both Houses will continue to use all the available scrutiny tools at their disposal to ensure that they are absolutely appropriately informed on the Government’s data adequacy progress and policy. I hope that he will feel able to withdraw his amendment.

Lord Stevenson of Balmacara: Before the Minister sits down, I hope that she can respond to one section of what I was asking about, on the interaction between existing responses to the data adequacy question and the new legislation that the department is working on. Does she feel that the new legislation as previously  conceived—and, indeed, as set out in her party’s manifesto—is being progressed and that there is no adverse fallout from that?

Baroness Barran: Yes, I can confirm that.

Lord Stevenson of Balmacara: My Lords, I thank the noble Lords who have contributed to this short but good debate. It was a robust response. I thank the Minister for the various points that she was able to cover and I look forward to her letter.
I did not raise it, but sitting a bit behind those on the Benches opposite is the question of why such a mess was made on the age-verification issues relating to children’s safety online. In a sense, that is why I asked about future policy in relation to where we were. This is a moving target. I do not want to be critical about this in any sense because it is right that we keep things moving and do not stick on where we were, in some sort of pre-Brexit mode. We must move forward. Life is changing, attitudes are changing and technology is moving forward at a huge pace.
We must be ready to anticipate that but it must not be at the expense of some hard-won decisions that were reached after a lot of debate. They were good decisions in relation to the Bill; both the Home Office and DCMS were heavily involved in them and I am sure that they are joined at the hip over this wonderfully named data adequacy hub. I wish it well in its future negotiations; I am sure that it is raring to go and that it will be very successful.
That leaves us with a bit of an information gap. Yes, the existing arrangements for getting information can be used, but they are never as efficient or effective as the Opposition want and are probably too frequent and difficult for the Government to respond to. How much better if we had a plan where we could say, “Every two months, you’re going to stand up and say something about it.” Perhaps we can make this work but I hope that this important issue is kept very much at the forefront of the department’s work, that there is an all-government response to this because it applies across the piece, and that we see something positive come from it. With that, I beg leave to withdraw the amendment.
Amendment 32 withdrawn.

Amendment 33

Lord Paddick: Moved by Lord Paddick
33: After Clause 37, insert the following new Clause—“Implementation period negotiating objectives: security partnership (1) It is an objective of Her Majesty’s Government within the framework of the future relationship of the United Kingdom and the EU to secure agreements that achieve equivalent outcomes to—(a) continued UK participation in the European Arrest Warrant;(b) continued UK membership of Europol and Eurojust; and(c) continued direct access for UK agencies to the following EU data-sharing mechanisms—(i) the Second Generation Schengen Information System (SIS II);(ii) the European Criminal Records Information System (ECRIS);  (iii) the Prüm Decisions;(iv) Passenger Name Record (PNR); and(v) the Europol Information System (EIS).(2) A Minister of the Crown must lay before each House of Parliament a progress report on each of the outcomes listed in subsection (1)(a) to (c) within 4 months of this Act being passed, and subsequently at intervals of no more than 2 months.”Member’s explanatory statementThis new Clause would require the Government to seek a comprehensive security partnership as part of its negotiations for the future relationship with the EU.

Lord Paddick: My Lords, Amendment 33 is in my name and that of my noble friend Lady Ludford.
At Second Reading, I alluded to the amendment as a means of mandating the Government to deliver on their promise that the UK would be as safe and secure outside the EU as it has been within the EU by specifying what the Government should seek in a comprehensive security partnership with the EU.
Various EU measures and mechanisms that are currently available to us as an EU member state are valuable to UK law enforcement. At a briefing given to the APPG on policing in 2017, the National Crime Agency lead on Brexit outlined what these were, what the alternatives might be and the impact on the UK’s safety and security were they no longer available. They were the Schengen Information System II, sharing information about terrorist suspects, those wanted under the European arrest warrant, stolen vehicles and similar information; the European arrest warrant, allowing rapid extradition without political involvement; Europol, pan-European strategy development to counter serious and organised crime; ECRIS, sharing information about criminal convictions handed down by any court in the EU; Prüm, rapid electronic comparison of DNA, fingerprints and vehicle registrations held on the databases of each EU state; cross-border surveillance, allowing surveillance of UK suspects in the EU and vice versa; and joint investigation teams under Eurojust, prosecuting pan-European crime.
He concluded that there were “workarounds”, but that these would be less efficient and effective than the existing EU mechanisms. For example, if Interpol were used instead of Prüm to try to match DNA found at a UK crime scene with DNA profiles of criminals held on EU member states’ databases, it would take months—and in some cases no response would be received at all—compared with seconds up to 24 hours using Prüm. He anticipated that extradition agreements would need to be negotiated separately with each of the remaining 27 EU states and that these would require political involvement, as opposed to the European arrest warrant where the decision is made by a judge. He concluded that the UK would be less safe and less secure if, rather than relying on existing EU mechanisms, it had to work on the basis of non-EU workarounds.
It was therefore reasonable to conclude that if these EU mechanisms were no longer available to the UK when we left the EU, alternative mechanisms would need to be put in place that delivered the same outcomes as efficiently and effectively as the existing EU mechanisms. Otherwise, the Government would have failed to deliver  on their promise that the UK would be as safe and secure outside the EU as it had been inside. The amendment would require a Minister of the Crown to update Parliament on progress in achieving these outcomes within four months, and regularly thereafter.
Why do we consider this so important? First, as Andrew Marr put it on Sunday to the Security Minister, the right honourable Brandon Lewis MP, the European arrest warrant and Europol, for example, rely on the European Court of Justice to resolve disputes between participants, and it is a red line for the Government that the ECJ should play no part in UK affairs after Brexit. The Security Minister replied that Europol has United States of America involvement, and clearly the US is not a member of the EU. What he was actually referring to was an agreement between Europol and the United States to share information within strict limitations—an agreement that can be terminated by either side at three months’ notice—not active involvement as an equal partner in Europol, deciding on the nature and scope of Europol’s activities, and nothing to do with the ECJ. Neither the USA nor any other third-party country has a say in Europol’s operations.
The Security Minister did not comment on the European arrest warrant, which more clearly and obviously requires the ECJ to adjudicate between participating states where a warrant is issued but another state refuses to extradite. The Security Minister did not comment on the EAW, probably because he knows that we are very unlikely to continue to be part of the European arrest warrant after Brexit. For example, Germany changed its constitution to allow the extradition of its own nationals under the European arrest warrant, but limited extradition to other EU member states. As I mentioned at Second Reading, Iceland and Norway applied to participate in a limited variation of the European arrest warrant in 2001, but that has yet to take effect, and they are both within the European Economic Area and the Schengen area.
The EU is already asking questions about the misuse of SIS II data by the UK, as my noble friend Lady Ludford just mentioned, with a group of MEPs in the European Parliament’s civil liberties committee demanding that the EU should deny the UK access to SIS II  data, even as a member state. A leaked report details 29 pages of violations of the use of SIS II by the UK since 2015.
The EU is also concerned that private American companies, contracted by the UK Government, that hold data copied from SIS II, could be compelled by US legislation to hand over the data to the United States. Noble Lords may recall similar concerns about parliamentary systems run by Microsoft. In response, the European Commission says that the UK will keep access to the database during the transition phase of Brexit, but it has made no commitment beyond that.
The Government’s negotiating position may be,  as a Minister said this afternoon in answer to a  Private Notice Question, that the UK is a major contributor to these EU mechanisms—for example, the European criminal records information system, where 30,000 notifications had been contributed by  the UK, but the UK had received only 16,000 notifications from the EU. However, in addition to the misuse of SIS II data, the PNQ was about the fact that not only had the UK failed to inform the EU of more than 75,000 criminal convictions of EU nationals in the UK going back as far as 2012, but that it had known about the problem since 2015 and had concealed the failure from other EU states.
Whether it is child abuse by the clergy or misconduct by police officers, when attempts are made to cover it up, it compounds the original failure when that eventually and inevitably comes to light. It is one thing for the EU to overlook the mistakes of a member state to keep it onside; it is quite another to persuade the EU 27 to trust a third-party country with its data when that third-party country not only flouted the rules but tried to conceal its mistakes when it was a member state.
We will be less safe and less secure unless any alternatives to existing EU mechanisms in the area of law enforcement are as efficient and as effective as those mechanisms. It is vital that Parliament is kept abreast of developments in this vitally important area of the negotiations. I beg to move.

Lord Warner: My Lords, I had not intended to speak on this amendment but, on further reflection, I thought that I should, as someone who has worked in the Home Office and seen how important our easy access to these European systems is for the public’s safety. It is worth us reminding ourselves that a primary purpose of any Government, of whatever political persuasion, is to keep the citizens of its country safe. Clearly there will be challenges for our security services, the police and our criminal justice system if we come out of these systems and do not have comparable or equivalent access to them and their information.
The problem is even more serious than the noble Lord, Lord Paddick, outlined in his extremely comprehensive and well-argued speech. The Government recognise that our criminal justice system faces a lot of challenges and has considerable inadequacies; they want an independent review of it. The Government’s acknowledgement of the system’s weaknesses in keeping our citizens safe makes it even more important that they should be busting a gut—if I may put it that way—to ensure that the UK keeps the kind of access to those systems that it has now, despite the criticisms currently made of how we have used them. It follows that any inability to have that access, or equivalent access, will weaken the Government’s capacity to keep their citizens safe. That will not be a good story to tell the electorate at any future election.
We must treat this area rather differently from how we treat some of the others in the Bill. It is up there as one of the top issues for the Government to tackle  in the next six to nine months. The noble Lord, Lord Paddick, and his colleagues deserve much credit for bringing this matter forward now, and I hope that if he is not satisfied he will push this matter to a Division next week. I entirely support Amendment 33.

Lord Tunnicliffe: My Lords, I am grateful to the noble Lord, Lord Paddick, for moving Amendment 33, which has provided an opportunity to discuss an  aspect of the future relationship that rarely receives the attention it deserves. As my party’s Treasury spokesman in this House, I recognise that our future trading relationship with the EU is of vital importance. However, it is not the only future relationship up for negotiation; nor is it the relationship that will keep British citizens, and our streets, safe.
I agree with the noble Lord, Lord Warner, that this is a vital area, in which we must do well, and which we must all understand. The political declaration includes a commitment to agree a
“broad, comprehensive and balanced security partnership.”
However, we should remind ourselves that although it is referenced in the withdrawal agreement, that declaration is non-binding. As well as lacking legal force, it is short on detail—largely, we understand, at the Government’s request.
Although Mrs May was misguided to threaten the withdrawal of security co-operation if the EU refused to grant us favourable trading terms, her Administration did at least provide an indication of what a future security partnership might look like. We have not had the same indication of what a Johnson-led Government wish to negotiate—and it seems that the Bill, which strips out the original requirement for proper engagement with, and scrutiny by, Parliament, means that we are unlikely to find out any time soon. If we do not know, it is highly doubtful that our police forces or security and intelligence services can be any more confident that the Government will preserve UK participation in the EU agencies and data-sharing protocols that are so important in their day-to-day work.
In the Commons, my Labour colleague Nick Thomas-Symonds outlined the risks that we face from any loss of access to EU databases, such as the Schengen Information System, meaning that
“information that today can be retrieved almost instantaneously could take days or weeks to access.”—[Official Report, Commons, 8/1/20; col. 509.]
Modern crime, whether cyber or terrorist attacks, requires quick decisive responses. As we have seen time and again in recent months, organised crime increasingly takes place across borders, taking advantage of any vulnerabilities that exist. Those vulnerabilities are best identified and addressed by working alongside our neighbours.
To lessen our degree of co-operation with our EU neighbours would be reckless. But, given the Government’s determination to conclude both our economic and our security relationships with the EU in just 11 months, it feels almost inevitable that there will be a diminution of the benefits that this country and its security agencies currently enjoy. I hope the Minister will be able to provide at least some of the detail so sorely lacking to date. I repeat my support for the principle underlying the amendment. If the Minister’s response is lacking, we may return to this issue at a later stage.

Baroness Williams of Trafford: I thank noble Lords for their comments. I support them in drawing my and the Government’s attention to the various elements  of co-operation that are so crucial in keeping our citizens safe.
It has never been in doubt that it is in everyone’s interest to maintain that strong relationship with the EU in this area. The political declaration provides  the framework for the strong relationship, including co-operation on the specific capabilities that the noble Lord, Lord Paddick, has set out in his amendment. However, the precise details that noble Lords seek will be a matter for the next phase of negotiations that will be carried out, I hope with flexibility, in this and other areas. A statutory requirement to negotiate—a matter discussed quite vocally in this Chamber today—is neither necessary nor appropriate.
On the role of Parliament, I refer noble Lords to the strong commitment given by the Prime Minister that Parliament will be kept fully informed of the progress of the negotiations and will have the opportunity to scrutinise any legislation required to enact the future relationship. Therefore, a reporting requirement is not needed.
The noble Lord, Lord Paddick, made a point about Norway and Iceland and their extradition agreement with the EU. Apparently, it is now in force as of 1 November last year.
I am sorry that I cannot fill in any detail but no detail is yet forthcoming. However, I hope the noble Lord will feel happy to withdraw his amendment.

Lord Paddick: My Lords, I thank the noble Lord, Lord Warner, for his support and his perspective, from his experience in the Home Office, on how important this issue is. He made an important point about the Government acknowledging the weakness already of the UK criminal justice system without losing these EU mechanisms. I am also grateful for the support of the noble Lord, Lord Tunnicliffe.
It is all very well for the Minister to keep putting matters off by saying, “This is going to be negotiated and I can’t say what the details of the negotiations will be.” Time is running out. That excuse will not be available in less than 12 months’ time and we are concerned that our law enforcement agencies will be handicapped as a consequence of losing some, if not all, of these EU mechanisms, as the National Crime Agency lead for Brexit told us in a briefing a few years ago.
I am grateful for the correction on the modified European arrest warrant arrangements with Norway and Iceland, which apparently came into effect on 1 November last year. That means that they took 18 years to come into effect. If that is the kind of timescale we are looking at to get a similar agreement between us, as a third-party country, and the EU, we are in serious trouble. However, at this stage I beg leave to withdraw my amendment.
Amendment 33 withdrawn.

Amendment 34

Lord Fox: Moved by Lord Fox
34: After Clause 37, insert the following new Clause—“Mobility frameworkIt is an objective of Her Majesty’s Government to take all necessary steps to secure an agreement within the framework of the future relationship of the United Kingdom and the EU which includes a mobility framework that enables  all UK and EU citizens to exercise the same reciprocal rights to work, live and study, including the ability while resident in one state to work with ease across borders.”Member’s explanatory statementThis new Clause would require the Government to seek reciprocal rights for UK and EU citizens to work, live and study.

Lord Fox: I thank my noble friend Lady Ludford and the noble Earl, Lord Clancarty, for their support.
Earlier the Minister spoke about the teams of people working hard on drafting legislation, so if the Government felt moved to accept the spirit, if not the content, of this amendment then the drafting of the immigration Bill may be made simpler.
The amendment essentially reproduces an amendment to the Trade Bill which was passed in your Lordships’ House. As your Lordships will remember, it never went any further because it was never put in the next stage to the other place. With that in mind I shall keep my comments to a relative minimum. I beg noble Lords’ indulgence as I shall talk a little about some of the statistics that I related to that amendment last time. If we look at the statistics about economic migrants from the Migration Advisory Committee in autumn 2018, it found that migrants had little or no impact on the overall employment or unemployment of the UK-born workforce. Migration was not a detriment to the wages of UK-born workers. The MAC noted that migrants had a positive effect on productivity and innovation and that EEA migrants contributed more than they consumed in health services and social care.
If nothing else, I am moving this amendment to ask the Government where they think they are going to get the workforce to meet the targets that we saw in the Queen’s Speech. By their own admission, those Bills and their targets are ambitious. They will take a lot of people. Simply looking at the NHS, social care and the provision of universal fibre and broadband, those take an awful lot of people. The level of immigration has been cited as one of the reasons why people have become disaffected with government and the United Kingdom, but the MAC figures refute the reality behind that. What has been behind that is that immigration has been used by people. Coupled with chronic political neglect in certain areas, the impression that immigration is creating a problem has grown.
I could go on and talk about the stupidity of the Government’s position that wrongly conflates someone’s salary with the contribution they make to the United Kingdom. I could explain that £30,000 in Leominster is a bit different from £30,000 in Westminster, and I could remind Ministers that on their figures, based on the most recent immigration White Paper, the UK would be worse off, with GDP falling by nearly 1%, but perhaps we can go into those details another day.
This afternoon we talked about there being no regression. It is very clear that this is regression. It is regression of UK citizens’ rights. Do not take my word for it. The highly respected European Union Committee of your Lordships’ House puts it clearly:
“While the Political Declaration proposes some mitigations, they will not change this significant restriction upon the freedoms currently enjoyed by UK citizens.”
This Bill not only restrict the freedoms of British citizens but leads to us having fewer good people to do the things we need to do. No sensible country which has successfully drawn on the talent of the whole of the continent would slam the door closed. No country would shut out people whom we need in social care, healthcare and all the other areas. Today’s figures on the success of the British tech start-ups are a direct result of the fact that we have been a magnet for the best people in Europe. The highly successful creative and media industry is about all the people we have been able to attract to this country, many of whom are paid less than £30,000 per annum. Free movement has benefited the whole country. This amendment sets out a means by which the UK can continue to reap those benefits. I beg to move.

Earl of Clancarty: My Lords, I have added my name to this amendment. I wish to say something about services since this amendment in significant respects covers their operation for UK workers living in this country and in Europe. I feel that we should be moving on from making the case to considering the details of the solution, yet services is an area that right through the Brexit debate has not been given the proper attention it has deserved, and continues not to be given it. Services are 80% of our economy, account for 40% of our exports, and most services go to Europe.
This is urgent. We are, for example, already losing large numbers of jobs in tourism in Europe, and Carolyn Fairbairn, director-general of the CBI, referred in May of last year to:
“Creative and tech firms that should be the foundation of our future economy moving their headquarters to Europe.”
This is before the transition period has even started. As I said last year in the debate on a similar amendment to the Trade Bill that the noble Lord, Lord Fox, mentioned, services are the canary in the coal mine. The problem is that the free movement of people is integral to the success of services, because so many individual citizens, including freelancers, not only drive these industries but are in many respects the product itself.
It is not just the financial industries—which the noble Lord, Lord Ahmad, who is not in his place, singled out in his reply to my Question last week on this area—but creative, IT, translators, tourism, and many more. I ask the Minister whether any impact analysis has been done on the effect of Mr Johnson’s Brexit deal on our trade in services with the EU. The sense from industry is that unless a mobility framework is put in place, the result is going to be devastating for those industries. As one IT worker put it this week, “A deal without a mobility framework for professionals delivering services in person will mean enforced redundancies and loss of income for thousands of people.”
Many of the sectors that will be affected have many of the same or similar concerns. What consultations have the Government had with relevant sectors to list and compare requirements? How much have they talked to the creative sector, to IT, and so on? There has been a lot of discussion about transparency and  consultation today. In many ways it has been the theme, but those working in services currently feel that they have no idea what the Government intend to fight for on their behalf. EU companies do not know either.
A solution needs to be found that neither discourages European employers or clients—as indeed is unfortunately already happening—nor is impractical or costly for UK workers. More fundamentally, even at this stage, the Government need to look more closely at the effect of the loss of free movement on our hugely important services. For their continuing success, UK and, through reciprocity, EU workers urgently need an appropriate mobility framework.

Lord Warner: My Lords, I want to add a couple of words to the points made by the noble Lord, Lord Fox, in his amendment. As far as the NHS is concerned, if the Government do not allow more people to come in and work in a highly labour-intensive industry, then they will not be able to spend the money that they are promising to put into the NHS in a way that is useful to patients. But that is not my main point.
My main point is to emphasise the extent to which there is continual movement between the UK and European countries, as part of big research projects in medicine, science and technology. People can freely move around Europe for six weeks, a month, a week or a weekend, and many of these projects have EU money, which has come to this country to be used to set up and run projects, but not all the work is done here. The work may be done with partners in other parts of the EU, and there is a constant flow of people. If we put barriers in the way of that movement around Europe of expert people—and many are not highly paid professors but PhD students who have come to this country—working on joint research projects, not only for basic research but for translational research, we will get ourselves ostracised. We will not be a partner that people want to play with, because it is difficult for people from other countries to move around Europe as part of those projects. We will cut off our nose to spite our face. We need something like this amendment to ensure that mobility and a mobility framework get the attention that they need for the future.

Baroness Hayter of Kentish Town: My Lords, the Minister—the noble Baroness, Lady Williams, who is now not in her place—spoke earlier about our seeking reciprocity with regard to children. I assume that the same is true as regards reciprocity for UK citizens abroad and EU citizens here. Thus far, the Government have singularly failed to negotiate successfully to secure the same rights for UK citizens as they have now to work, live and move across the EU. It is true that they can continue to live and work where they are at the moment at the end of the implementation period, but UK citizens will then lose their current right to move elsewhere across the EU—something that is, as we have just heard, at variance with the right of other EU citizens. Therefore, they will be disadvantaged compared with their fellow workers who are EU citizens already here, be they researchers, as referred to by the noble Lord, Lord Warner, artistes, mentioned by the noble Earl, translators, interpreters, freelancers or a number of other specialist staff who tend to move around  because of the nature of their jobs. Under the agreement so far reached, they will only be able to live, stay and work in one of those 27 countries but will lose their freedom to move elsewhere.
Therefore, it is vital that we raise this matter higher up the Government’s negotiating aims. This is urgent as well as important. It is time that the Government did more to defend their own citizens’ interests rather more robustly than they have succeeded in doing thus far.

Baroness Ludford: My Lords, I just want to add briefly that the wording in the amendment reflects the wording in the White Paper of July 2018 on the future relationship. I do not know whether that White Paper has become “paper non grata” under the present Government but it talked about a framework for mobility providing reciprocal arrangements, which is broadly what the amendment refers to. That is what we want to hear about—a framework for mobility.
The noble Baroness, Lady Hayter, prompted me to think. To the extent that we have EU citizens with settled status, assuming that they do not feel that they have to seek British citizenship, they could be working on a research project based in the UK and, because they will retain their EU citizenship, they will be able to travel around 27 countries. However, the UK citizen may well not be able to do that, so will be second class compared to a work colleague who is an EU citizen and has a passport from one of the EU or EEA countries, unless a mobility framework with reciprocal arrangements and rights encompasses the ability of those UK citizens to work across the EU 27. Therefore, it is relevant to UK citizens living here but of course also highly relevant to UK citizens living in the EU 27. Many face difficulties in getting their residence finalised in an EU country but a lot are also very worried that they are losing their ability to work across borders. The fact is that nothing can be as good as EU free movement. The same applies to the security partnership —nothing is as good as EU membership. Therefore, we are trying to approximate as far as possible what we have at the moment, even though it falls short of that, but a key point is encapsulated in the final words of the amendment, which are:
“including the ability while resident in one state to work with ease across borders.”
My other point concerns pensions, pension uprating and healthcare arrangements, which are absolutely crucial to UK citizens in the EU 27. This is hugely important for the UK economy and for individuals—whether they are EU citizens or, perhaps even more, UK citizens resident here and resident in the EU 27 —who need to be able to move around where their work takes them.

Baroness Bennett of Manor Castle: My Lords, the noble Lord, Lord Fox, used a few key words when he quoted from the respected committee. This is a regression. This is going backwards for the people of the United Kingdom. Far too often, this has been seen as an issue that concerns people from other parts of Europe coming here. We need to look at this the other way   around, and far too little has been discussed about that. When this issue has been discussed, it has often been seen as an economic issue. The noble Lord, Lord Fox, made some powerful arguments about that. But the fact is that this is much more than an economic issue. The noble Lord, Lord Warner, made arguments about the NHS. Of course, we know that if you meet an EU citizen in the NHS, they are far more likely not to be in a queue with you seeking treatment but to be treating you.
I will focus very briefly on young people. There is a principle that young people should not have fewer freedoms and opportunities than their parents. They should be able to live, work and love wherever they want to be. It is a quality issue, because rich, wealthier young people from more privileged backgrounds will always have those options; it will be people from poorer and more disadvantaged backgrounds who will lose those options. The noble Baroness, Lady Ludford, talked about where we are going. What we are  trying to do here—collectively, all of us—is to  end up with the least worst Brexit, and the best possible mobility that we can have will ensure the least worst Brexit.

Lord Callanan: My Lords, I thank the noble Lord, Lord Fox, for his amendment and for raising the important subject of a mobility framework. I also thank the noble Earl, Lord Clancarty, the noble Lord, Lord Warner, my main interlocutors, the noble Baronesses, Lady Ludford and Lady Hayter, and the noble Baroness, Lady Bennett, for their contributions.
We are all aware that free movement of people between the EU and the UK will end as we leave the European Union. I am sure that noble Lords will appreciate—even if they do not necessarily agree—that seeking to mandate the Government to negotiate further free movement provisions goes against our entire approach. As we have previously announced, the Government will be introducing a new points-based immigration system built around the skills and talents that people have, not necessarily based just on where they are from.
I appreciate the desire to secure rights to travel, work, study and live in the EU in the future. We recognise the importance of mobility for economic, social and cultural co-operation, and we committed to agreeing the best deal for the whole of the United Kingdom. The political declaration that we have agreed sets out the aspects of mobility that the UK and the EU have committed to discussing in the future-relationship negotiations. These include: providing for visa-free travel for short-term stays; mobility for research, study, training and youth exchanges, and securing mobility for business purposes.
The noble Lord’s inclusion of the right to work across borders is well intentioned, but in our view unnecessary. The agreements that we have reached on citizens’ rights with the EU, EEA/EFTA countries and Switzerland protect the rights of these so-called frontier workers. These are UK nationals who are living in the UK or a member state but are working in another member state, or EU citizens living in the EU and working in the UK. That will take effect at the end of the implementation period.
For example, this will protect an individual who lives in London but works in Paris or Brussels, and vice versa. I hope that I have been able to reassure the noble Lord on this point. However, as we have argued in other amendments, in this situation it is not helpful for Parliament to set a negotiating objective for the Government in statute. This would limit the Government’s flexibility in negotiations and, as I said, the detail of future mobility arrangements with the EU is set out in the political declaration and will be discussed in the next phase of the negotiations.
The noble Baronesses, Lady Hayter and Lady Ludford, raised the important subject of the onward-movement rights of UK nationals in the EU. We recognised at the outset that this was a vital subject for those UK nationals who are living in the EU. I have to tell both noble Baronesses that we tried very hard to get it included in the negotiations, but the EU refused to discuss it in the withdrawal agreement and said that it was an issue to be discussed in the future relationship negotiations—so that is what we will do. I assure noble Lords that we tried very hard to get it included in the negotiations, and it was not for the lack of trying on our side that we were not able to conclude an agreement on that. On that basis, the details of future mobility arrangements will be subject to negotiations in the next phase of the talks.
I hope that I have been able to satisfy the noble Lord, Lord Fox, with my response to his amendment—although I suspect that I have not—and that he will feel able to withdraw it.

Lord Fox: I thank the Minister for his response. Frankly, I had not expected a great melding of minds. It is clear that from these Benches, and seemingly from all the other Benches, that we think the Government are wrong on this. The Government of course have a majority and therefore have the right to pursue their wrong-headed policies, but there will be many of us who will continue to remind them of, and take opportunities to change, that wrongness. As time unfolds and the Government begin to attempt to implement a complex points-based system, as they call it, they will find that they have neither the personnel nor the systems to do so quickly, and pretty soon they will find that we are accessing and bringing in at least as many people as we are now, if not more. Personally, I welcome that, but it stands against many of the things that the Government have said in the past. That said, I beg leave at this stage to withdraw the amendment.
Amendment 34 withdrawn.

Amendment 35

Lord Fox: Moved by Lord Fox
35: After Clause 37, insert the following new Clause—“Implementation period negotiating objectives: level playing-field (1) It is an objective of Her Majesty’s Government within the framework of the future relationship of the United Kingdom and the EU to secure agreements that achieve the following outcomes—(a) close alignment with the EU single market, underpinned by shared institutions and obligations, with clear arrangements for dispute resolution;  (b) dynamic alignment on rights and protections for workers, consumers and the environment so that UK standards at least keep pace with evolving standards across the EU as a minimum; and(c) participation in EU agencies and funding programmes, including for the environment, education, science and industrial regulation.(2) A Minister of the Crown must lay before each House of Parliament a progress report on each of the outcomes listed in subsection (1)(a) to (c) within 4 months of this Act being passed, and subsequently at intervals of no more than 2 months.”Member’s explanatory statementThis new Clause would require the Government to seek close alignment with the EU single market on key level playing-field provisions such as workers’ rights and environmental and consumer standards and protections as part of its negotiations for the future relationship with the EU.

Lord Fox: Oh dear, it’s that man again. Amendment 35 concerns the level playing field. We have heard a lot about standards and regulation over the last day and a half. This is not about going through all those standards and regulations and whether they are being regressed or otherwise. It is about the overall effect that the playing field, as we have called it—we will talk about that—will have on the negotiation stance. This is very much a probing amendment to try to find out how the Government will deal with what seem to me a number of conflicting circumstances in their positions.
We have heard a lot about regression but we are  not going to talk about the individual issues here. Amendment 35 seeks to require the Government—those words again—to seek alignment of their regulations, institutions and objectives for the future FTA with the EU. My noble friend Lord Newby talked about whether we are talking about unfettered or frictionless access. A key element to access to the single market will be the level playing field, which is why this is a really important element. I am keen to hear the Government’s intellectual thoughts here. For the avoidance of doubt, we are talking about workers’ rights, environmental regulations, state aid, food and product safety, data rules and the whole framework by which people do business and live their lives. It is not a small issue. Picking out just one of those—employment regulation—I note with surprise that the Prime Minister is quoted in the Financial Times as describing employment regulation as “back-breaking”. I come from an agricultural background and it was the absence of employment regulation that caused backs to break. The point I am trying to make is that regulation is often seen as harmful and terrible, but it has had a beneficial effect on many people’s lives. You have only to ask agricultural workers alive today to see how employment regulation has improved their lives. That is just one small example.
These rules matter to people, the environment, business and many other things. But they will also matter to the EU trade negotiation; in fact, they will make or break it. The non-binding political declaration on the future EU-UK relationship makes it clear that there is a direct link between Britain’s regulatory regime and market access; we know that to be true. That is picked up in the wonderful report from the European Union Select Committee, which I have already referred to. It  talks about where there has been a substantial rewrite, which we have heard about in other cases. The report says that the declaration, in adding the issue of the
“geographic proximity and economic independence of the parties,”
adds more doubt about how this will go forward.
In the event that the EU eventually agrees to a UK-wide customs union, which it may, member states will require the UK to sign up to level playing field provisions. What is a level playing field? Most people who talk about them are usually trying to tip one in their direction at the same time; that is of course the subject of the negotiation, and I would not dream of seeking to tie the hands of the Government on that. By the definition of the negotiation, a level playing field is the price of any zero-tariff, quota-free and rules-of-origin-free access to that very important market for the United Kingdom. Anything less will create friction, or perhaps fetter access to that market. That is what our major industries fear. If noble Lords talk to major industries, as I am sure they are doing, they will hear that the issue of data, which we heard about two amendments ago, is frightening the fintech industry to death. Questions about rules of origin are frightening the food industry. Chemical and pharmaceutical companies fear, among other things, how the chemical regulations will pan out. Aerospace and automotive are famously concerned about how their industries will survive in this remit.
There are many other examples of when the Government and Ministers have said the right things—I praise them for that. The Government have worked with the words and talked about balance and regulatory alignment. However, the noble Baroness, Lady Jones of Whitchurch, talked about the pressures on the Government that will come. There are also examples of the Government painting a picture of a much more freewheeling approach. We have heard people worrying in other debates about regression of rules and regulations and there are those quotes from different Ministers in different places, particularly the Prime Minister, who sometimes chooses to set out a Britain on the edge of Europe, with lighter regulations. Before the election, DExEU signalled an openness to “significant divergence”. This all adds to people’s distrust of the Government’s intentions.
In Johnson’s case, his ambivalence seems determined by his proximity to the United States: the nearer he is to President Trump, the more free market he is in what he says. We should note that talk of the US trade deal really makes the level playing field issue with respect to the European Union very difficult. We talked on a previous amendment about some of the food security issues which the United States could create, so there is a big challenge here. These mixed messages from Government could be constructive ambivalence before we go into a negotiating period, or there could be splits or confusion. Perhaps the Minister can define quite why all these different messages are coming forward.
From the EU’s perspective, there is no such thing as a little bit of a level playing field. From its perspective, it is level or not level. I think a lot of the talk has been about having some levelness, but not all of it. I think that is to misunderstand the approach that the European Union will take when it comes to negotiations. Theresa  May’s deal agreed a relatively generous level of provisions around taxation, labour and social standards and environmental protection. We are now in a different place, so I think we need some delineation from the Minister of which areas will be the focus for negotiations because I am sure that those Theresa May provisions will be, at the very least, a starting point from the European Union’s perspective.
We do not have time, but there is the whole issue of dynamic alignment. As Ministers have set out, we start off in the same place—it is pretty easy. But the day after tomorrow, something changes. How do we change and maintain dynamic alignment with those standards? This is a particular issue when we come to the island of Ireland and Northern Ireland. Under the deal, as I understand it, legally binding level playing field provisions apply in the exit treaty focused on Northern Ireland. How the UK maintains alignment in the British part and the Northern Irish part of those regulations to maintain its access to the all-Irish market, and therefore the European Union, is beyond my ability to understand. I am happy and humble if the Minister can explain how it will happen. It will be crucial to the negotiation. Things coming out of Brussels indicate that the role of British businesses with Northern Irish subsidiaries will also be dragged into negotiations, something I had not heard anything about until yesterday. That adds further complications to it.
This amendment also seeks to maintain UK access to participation in major funding programmes and the like, which I will not go into. The amendment sets out what we think is important around the level playing field issue. It maintains a beneficial framework—a framework jointly developed by the United Kingdom with the European Union; it was not foisted on us—and it helps to send the right messages to important businesses and sectors about how they can face the future. This discussion is a chance for Her Majesty’s Government to set out their approach because, at the moment, the messages have been confused, confusing or both, so we look forward to comments from the Minister.

Viscount Trenchard: My Lords, the noble Lord, Lord Fox, has talked at great length about a level playing field. The level playing field he refers to is the EU level playing field. It is not any other level playing field, such as the House of Lords level playing field, which seems to suit the Liberal Democrats, who are overrepresented in your Lordships’ House by 67% on the basis of the proportion of votes cast at the last general election.

Lord Fox: I congratulate the Member opposite on embracing proportional representation.

Viscount Trenchard: That is my pleasure. Proportional representation has its place but it may not be applicable everywhere.
I am very surprised that the noble Lord has sought to require the Government to adopt his amendment seeking a level playing field with the EU on workers’   rights and environmental and consumer standards. Is he not aware that it was a manifesto commitment of the Conservative Party, to which all Conservative candidates signed up, that the Government would get a proper Brexit done and that we would leave the customs union and the single market? It is essential that we do that to have the flexibility we need to develop and maintain our own independent trade policy, and to negotiate free trade agreements with third countries.
The noble Lord’s amendment requires close alignment with the EU single market, underpinned by shared institutions and obligations. “Shared institutions” sounds to me as though we could still be regulated by EU regulators even after we had left. The EU will seek to export its regulatory framework and standards to us in return for providing market access. Dynamic alignment on workers’ and consumers’ rights would completely subjugate us to the EU, ruling us out as a potential trade partner for others and denying us the benefits and upside of Brexit. We know that the noble Lord does not want to leave the EU but surely he understands that, given that Brexit is going to happen anyway, we should make sure that we can play on a level playing field at the global level. That means freeing ourselves from EU strictures, such as the noble Lord’s amendment would make worse.

Lord Warner: I am sorry to interrupt the noble Viscount’s flow but I cannot resist asking him, even at this time of night, whether the Prime Minister’s new best friends in constituencies in the north of England and the Midlands will welcome his robust approach to workers’ rights at the next election.

Viscount Trenchard: I believe that the policy which my right honourable friend the Prime Minister used to persuade his new supporters in the north of England and elsewhere to support is one that will produce more prosperity for the United Kingdom and a brighter future for all, and that those who voted for him in the north of England will see that it is in their interests to continue to vote for him and his successors, because his policy will have so clearly worked. Furthermore, since we will be free of the cash drain and the regulatory strictures of the EU, which have progressively stunted the United Kingdom’s voice in global fora—I speak as someone who has spent a large proportion of his working life outside the UK, looking in—the new supporters of the Conservative Party in the north will, I hope and trust, wish to continue to support it.
The noble Lord, Lord Fox, talked a lot about regression and standards. He is always trying to bind the Government not to resile or retreat from the high standards set by the EU. But standards are not about high and low; they are about what is proportionate, what properly balances the interests of the innovator with those of the consumer, and what sufficiently but properly protects the consumer against risk. EU regulation in many fields relies so much on the precautionary principle that it has a very negative effect on innovation. That places at risk the UK’s position as the best country  in the world in which to conduct medical and scientific innovation, so for all those reasons I would resist the noble Lord’s amendment.

Baroness Ludford: Before the noble Viscount sits down, can I point out that the reputation he just mentioned, as the greatest country in the world in which to develop medical and other research, has been acquired while we have been in the European Union?

Viscount Trenchard: The noble Baroness is quite right—it is in spite of our being in the European Union. This precautionary principle regulation increasingly affects international pharmaceutical companies, which have said to me that it is important that we should not allow much more of that or we will be a less friendly place for innovation.

Baroness Hayter of Kentish Town: My Lords, I do not know about this talk of workers’ rights, but I started at 11 this morning, it is now nearly 10 pm and we are starting again at 11 tomorrow morning—sadly not being paid to be here; I am not a worker, so I cannot use the EU regulations. But that is rather beside the point. I am looking forward to the Minister’s “intellectual thoughts” as the noble Lord, Lord Fox, asked of him.
The Government’s aim is for a free trade agreement—“unfettered” trade—which, if we are not to undercut our competitors across the EU, is bound to involve a level playing field of regulations and state aid rules, as the noble Lord, Lord Fox, said. Michel Barnier has repeatedly stated that Boris Johnson’s ambition of a tariff-free, quota-free deal hinges on accepting this, and EU leaders suggest that level-playing-field commitments will be a precondition for the EU to conclude a free trade agreement. Emmanuel Macron has stated that
“the more ambitious the agreement, the more substantial the regulatory alignment”.
That does not mean all the same rules and institutions—we do not go along with that—but this is about the rules by which we can trade with the EU. Macron also said that a level playing field will make the negotiations “go pretty quickly”.
As we know, the Prime Minister keeps saying “Get Brexit done”, but this also means getting an FTA before the end of the year. If we do not uphold workers’, consumers’ and environmental rights, this will not help the Prime Minister to get his Brexit done. Appearing willing to undermine EU standards—and the Government are seen as undermining them—will immediately indicate to the EU that its companies may face unfair competition from ours. The Government’s deletion of the clauses upholding existing rights has already alarmed the EU and companies there, let alone our own workers and consumers.
Amendment 35 inserts the aims already set out in the political declaration—though of course they are not enforceable in that—where the Government agreed to
“maintain environmental, social and employment standards at the current high levels provided by the existing common standards.”
We are asking for this, from the political declaration, to be included in the Bill.
We have had 45 years of progressive integration of our employment rights and other standards alongside the EU. These regulations are good in themselves for the workers and consumers concerned and for the environment, but they are crucial for an open, fair and competitive continental market on whose growth and resilience all our well-being depends. Furthermore, as has been suggested, any future trade deal must incorporate these high levels of alignment and a level playing field with the EU in order to prevent an alternative vision—the deregulatory US deal—taking primacy over the EU deal. It sounds as though that it is something the noble Viscount, Lord Trenchard, would like, but we on this side of the House would not. Let us keep to the high standards that we have.

Lord Callanan: My Lords, I first thank the noble Lord, Lord Fox, for so ably moving his amendment on the issue of close and dynamic alignment on single market rules. I have a sense of déjà vu, because we have of course discussed this subject many times, both during the passage of the previous EU withdrawal Bill and in many debates and Questions in this House.  I will probably not surprise him with my answer but I will nevertheless plough ahead with it anyway.
It will, I am sure, not come as a shock to the noble Lord to find that the Government cannot support his proposed new clause in Amendment 35, for the reasons that I will set out. I will say, before that, that we want an ambitious future economic partnership with the EU, one that allows us to be in control of our own laws and benefit from trade with other countries around the world. Adopting his amendment would prevent that. We do not believe that dynamic alignment with future EU rules is in the best interests of this country. It is here in this Parliament, not in Brussels, where decisions should be taken over the laws that govern our country. That is the very essence of taking back control. This view is supported by many of the leading experts in the field, including the Governor of the Bank of England, who recently said in the Financial Times:
“It is not desirable at all to align our approaches, to tie our hands and to outsource regulation and effectively supervision of the world’s leading complex financial system to another jurisdiction.”
This Government remain committed to upholding high standards for workers, consumers and the environment. As I have said on many occasions, we do not have to follow EU rules in order to achieve this. It has become something of an obsession for Labour and the Liberal Democrats that somehow we want to undermine EU standards. Let me again say, as I have said many times in this House before, that in most of these areas we already exceed EU minimum standards. I will give the same examples that I have given to the House many times before.
On environmental protections, the UK’s world-leading ban on single-use plastic items will come into force in April 2020, a year ahead of the EU’s timetable set out in the single-use plastics directive. On workers’ rights, the UK’s maternity system is one of the most generous in the world. Most mothers can take up to 39 weeks of guaranteed paid leave. This is nearly three times the  EU minimum requirement of 14 weeks. On consumer rights, in England and Wales and Northern Ireland, consumers always have a six-year guarantee—five years in Scotland—that repair or replacement will be free of charge if a product is faulty or not as advertised. This, as in the other standards, goes well beyond the EU minimum requirement of a two-year legal guarantee. I am intrigued to find out why the Liberal Democrats and the Labour Party are so obsessed with aligning with EU standards that are much lower than our own in this country.
We are also committed, as we set out, to introducing legislation that will further enhance many of these high standards. In the field of workers’ rights, I am sure the Labour Party will be very interested to know that this will result in the creation of a single enforcement body to crack down on breaches of employment law. This is on top of the implementation of the Good Work Plan, which is the largest upgrade to workers’ rights in a generation. For the environment, we are introducing the landmark environment Bill, which will establish an independent office for environmental protection and will embed the UK’s ambition to build on our high levels of environmental protection.
The other subject raised by the noble Lord, Lord Fox, is participation in EU funding programmes. The political declaration, in paragraphs 11 to 12, clearly envisages close co-operation across a range of areas, including science, innovation and education. It already provides for the possibility of UK participation in specific  EU programmes, including the negotiations of terms and conditions. If it is in the UK’s interests, we  will seek to participate in EU programmes such  as those related to science, research and innovation  as a third country. However, this will be a matter  for the upcoming negotiations, because these funding programmes have not yet been finalised. They are part of the EU’s 2020 MFF negotiations taking place at the moment. The Opposition are asking us to commit to programmes the details of which we do not yet know. But we are not ruling it out. We will take a long, hard look when the programmes are finalised and, if it is in the UK’s interests, we will seek to participate. For agencies, the political declaration sets out, in paragraph 23, that
“The Parties will also explore the possibility of cooperation of United Kingdom authorities with Union agencies”.
Again, the nature of this co-operation will be subject to the ongoing negotiations.
We have been through these issues many times before, so I hope the noble Lord will forgive me for setting them out yet again. In the light of this and the information I have given him that the UK already exceeds EU minimum standards in virtually all these areas, I hope that he will feel able to withdraw his amendment.

Lord Fox: I thank the Minister for his response and noble Lords for their contributions. Whenever I have a feeling of self-doubt, I have only to listen to the noble Viscount, Lord Trenchard, to cure it and I feel a lot better afterwards.
The Minister talks brilliantly on the Government’s regulatory approach, saying that we do not need to follow EU rules to achieve this. That would be true  had the Government not done the deal they did on Northern Ireland. That is the point I am making about the internal tension within the regulatory scene in that negotiation. That is his problem and we will be following it very closely. I will read the Minister’s response in Hansard and inwardly digest it, but in the meantime, I beg leave to withdraw the amendment.
Amendment 35 withdrawn.

Amendment 36

Baroness Brinton: Moved by Baroness Brinton
36: After Clause 37, insert the following new Clause—“UK participation in the European medicines regulatory network (1) It is the objective of an appropriate authority to take all necessary steps to implement an international trade agreement, which enables the United Kingdom to participate fully after IP completion day in the European medicines regulatory network partnership between the EU, the EEA and the European Medicines Agency.(2) A Minister of the Crown must lay before each House of Parliament a progress report on the objective in subsection (1) within 4 months of this Act being passed, and subsequently at intervals of no more than 2 months.”Member’s explanatory statementThis new Clause would require the Government to seek to maintain participation in the European medicines regulatory network as part of its negotiations for the future relationship with the EU.

Baroness Brinton: My Lords, I am moving Amendment 36 as my noble friend Lady Jolly cannot be in her place tonight, given that the arrangements for today changed at very short notice. I thank the noble Lords, Lord Warner and Lord Davies of Stamford, for supporting the amendment.
As a member of the European medicines regulatory network, the UK enjoys a wide range of benefits, including access to a vast network of expertise and the ability to draw on specialists from across member states. It is particularly important in the recruitment of participants for clinical trials, especially for rare diseases. As a lone state we would not have a large enough patient population to carry out meaningful research and produce meaningful evidence. Within the EMRN, the shared reporting of side-effects means that NHS clinicians have instant access to important data regarding the safety of medicines they prescribe to their patients. These benefits cannot be recreated outside this network and if we are to continue to benefit from them, the Government must negotiate continued participation following the UK’s departure from the European Union.
The European Medicines Agency has already relocated to Amsterdam. If we leave the EMRN we will be leaving a body that constitutes 25% of the global pharmaceutical market to be a stand-alone country that makes up only 3% of that market. Pharmaceutical companies will have to submit separate applications to the MHRA to gain UK marketing rights. Evidence shows that countries such as Switzerland, Canada and Australia all receive applications for drug licensing  after the EMA, with an average delay of six months. The sad fact is that the UK will not be seen as a priority, and patients will inevitably see delays in accessing new medicines.
There is no way for the Government to replicate the expertise of the EMA and the power of the single market. Therefore, it is essential that the Minister commit to the UK negotiating the MHRA’s full participation in the EMA marketing authorisation on a similar basis to EEA countries’ regulators. Will the Minister confirm that the Government will commit to making this a priority in negotiations? The United Kingdom’s departure from the EMA will damage patients in the UK, who will be collateral damage of our leaving the EU. This is not something that the UK public ever voted for.
Given the discussion on Amendment 34 on more general reciprocal rights, I ask the Minister a further question, of which I have given her advance notice, on the lack of mention of reciprocal health arrangements after leaving the EU. The European Union Committee report, Brexit: the Revised Withdrawal Agreement and Political Agreement, which came out on Friday, notes the lack of any mention of reciprocal health arrangements and says, in the section on mobility on pages 56-57, that clarity is needed on how this will work. Specifically, paragraph 252 says:
“There is no reference in this section of the Declaration to reciprocal healthcare”.
Paragraph 257 says, in bold type:
“We are concerned at the omission of any reference to reciprocal healthcare, including the European Health Insurance Card, as a means of facilitating mobility. We call on the Government to set out, as a matter of urgency, its plans for maintaining reciprocal healthcare arrangements in the context of the future relationship.”
In paragraphs 173 and 174 there is also specific reference to reciprocal healthcare in Northern Ireland and the Republic. I will not repeat it now, but it makes the point that that is vital.
Can the Minister explain why there is no mention of reciprocal healthcare in the Bill and confirm explicitly to the House that the Healthcare (European Economic Area and Switzerland Arrangements) Act 2019, which many of us worked on, provides for such reciprocal arrangements? Perhaps most importantly, can she confirm that the Government will stand by that Act and not amend or repeal it? I beg to move.

Lord Warner: My Lords, I support this amendment, to which I have given my name, which has been moved so clearly by the noble Baroness, Lady Brinton. I do so as a former Life Sciences and Pharmaceuticals Minister who has stayed in touch with this sector since my time as a Minister.
The UK life sciences ecosystem has thrived, with an EU pharmaceuticals regulator based in this country and a strong medicines research base working closely with other European researchers. Over the years a strong pan-European research collaboration has grown up, which has benefited UK jobs and NHS patients. Every month, 45 million packs of medicines move from the UK to the EU and 37 million packs come the other way. The pharmaceuticals sector invests more in R&D than any other—20% of all UK business R&D.  This is an industry with an annual turnover of £60 billion and exports of £30 billion. It employs 63,000 people, of whom 24,000 are working in high-paid jobs in R&D.
I say this because all of this is now at risk of lasting damage, particularly if there is not enough time to agree a well thought out deal during the transition period. There is now the prospect of a very clunky regulatory system, with companies having to deal with two regulators—the EMEA and the MHRA—if they want market authorisations in both the EU and the UK. The Government are saying that they want the UK market authorisations to be obtained first, but  the EU is the bigger market and some companies think that they may end up with shorter IP protection in the larger market if they do what the Government ask. A dual regulatory system is likely to mean higher costs, driving up NHS prices and damaging patient access to new drugs. It will mean fewer joint research projects benefiting from EU funds, and UK-based companies are less likely to find the UK Government replacing the lost R&D funds from the EU. Over time, we may well see fewer clinical trials being done in  the UK.
That is why this amendment is important. It offers the possibility of repairing some of the damage  done by Brexit to UK life sciences and UK-based pharmaceuticals and biotech companies. We need to do our utmost to restore some basis for extensive collaboration and research work between us and the EU in the life sciences, and we need to do the best  we can to make the regulatory processes as smooth  as possible if we want people to continue to do pharmaceuticals research in this country. The Government have been slow to appreciate the damage they have been doing over the last three years to this British success story. Passing this amendment would start to repair some of the damage.

Lord Davies of Stamford: My Lords, my two colleagues have made a powerful case for the European Medicines Agency. They are perfectly right. The consequences of getting rid of it—of leaving the EU structure—are very serious. There are two parties involved in any introduction of a new ethical compound to the market. One is a pharmaceutical major—and by “major” I mean household names that the House will be familiar with: Pfizer, Merck, Eli Lilly, AstraZeneca, Glaxo, Boehringer, Bayer, Sanofi, Roche—I have left out two or three and a couple of Japanese ones, but you can count them on the fingers of three hands or so. The second is a regulatory agency that provides registration, which is of course the key to licensing, prescribing and selling freely a drug in the jurisdiction concerned.
People who know a lot about this subject may  be surprised that I have not mentioned smaller pharmaceutical boutiques, because it is well known that most new drug registrations in the past 20 years have been for compounds identified and developed in small boutique companies. However, those companies never get involved in the registration process. They cannot possibly afford it. The registration of a new compound typically costs about £1 billion a throw. The clinical trials that must be randomised and which  last for years are particularly expensive. No boutique can face that; nor will a boutique have the resources to market a drug. Those two roles remain in the hands of the pharmaceutical majors.
All that is necessary to understand what might happen if we leave the European Medicines Agency. The Government will have four choices if we do. The first is to do nothing at all, which would have the consequence of new compounds not being registered in this country. They would not be available for prescription and British patients would not have them. I assume that the Government will exclude that possibility. The noble Lord, Lord Warner, suggested another possibility: building up the domestic registration agency, perhaps along the lines of the European Medicines Agency or the FDA in the United States, and opening it for business. I am prepared to predict that that new agency would go broke within 12 months. It would not get any customers because pharmaceutical majors that have already spent £1 billion getting registration for the European Union or the United States will not want to spend another £1 billion going through registration for a country that has a mere 3% of the sales of ethical pharmaceutical products. They would not use it.
I suppose that the Government could decide to set up an agency with softer criteria, less demanding rules and lower registration costs, and attract business in that way. I think it inconceivable that any reputable scientist in this country—we have wonderful scientists in pharmacology, biochemistry and, of course, medicine —would agree to work on that basis and to give up the professional standards for which they are famous. At that point, the only thing that the Government could do would be to act as a kind of passenger on the system and say, “Well, if a drug has been registered by a reputable registration agency in, say, the United States or the European Union, we will just follow that”, and, without any procedures at all, allow that particular drug to be marketed in this country. That would also be an extraordinary move on the part of a country that has played such a major role in drug registration in the past. Surely it would be an extraordinary result for a Government concerned about national sovereignty if we became entirely dependent on an organisation over which we have no influence whatever, as we would no longer be involved in its management structure or its strategic thinking. That would be very bad news.
The purpose of my intervention is quite simple: to ask the Government what they would do if they left the European Medicines Agency at the same time as they left the European Union, which is quite unnecessary. As far as I know, there is no basis for expelling a member. I do not think that there is any political interest in trying to expel the United Kingdom, anyway. So we would have to take the initiative and resign, if we wished to resign. Equally, we could do nothing and remain part of the European Medicines Agency, with all the advantages that my two colleagues have set out this evening.

Baroness Thornton: My Lords, let me say how much I welcome the amendment moved by the noble Baroness, Lady Brinton.
When I had the temerity to raise this issue and all the others raised by the noble Baroness on Monday at Second Reading, I sought information and assurance  on a range of healthcare matters. I think we can say that I got the bum’s rush from the Minister when he answered my questions. In fact, he did not answer them at all. I hope we might fare better this evening.
The medical research sector has been clear that continued close co-operation should be a priority in the negotiations. Indeed, the Government have recognised the international nature of the life sciences sector. They are committed to aligning as closely as possible with the European Union clinical trial regulation when it comes into effect, safeguarding vital UK-EU clinical trials. Indeed, the political declaration also refers to continued co-operation with the European Medicines Agency, which would help ensure that patients in the UK have swift access to the newest medicine. However, the political declaration has no legal standing, so the noble Baroness, Lady Brinton, is quite right to repeat in the Committee the concerns expressed by the European Union Committee. As it stands at the moment, we cannot see that the European Medicines Agency will continue to benefit patients in the UK.
For some treatments, those of rare diseases, a single authorisation at EU level is vital in providing for cost-effective licensing and distribution of medicines for small populations. If the UK is outside the EU market and companies are required to pay again for separate MHRA licensing, as well as an appraisal by NICE and equivalent bodies in the devolved nations, there must be real concern that some treatments for rare diseases may become not financially viable to launch in the UK, therefore risking patient access entirely.
I know that the Minister absolutely understands all this, so it is very important that she reassures the Committee that these issues will not just be taken into account but will be part of the negotiations and will be successful.

Baroness Blackwood of North Oxford: My Lords, I welcome the opportunity to discuss this important issue, and I thank all noble Lords for their, as always, thoughtful and expert contributions. During the Government’s preparations for EU exit, this House has discussed on a number of occasions the great value of the UK’s life sciences industry and the importance of ensuring that it remains—as the noble Lord, Lord Warner, rightly said—one of the most productive health and life sciences sectors in the world. As noble Lords will know, this sector alone contributes over £74 billion a year to the UK economy and employs close to 250,000 people. I contest the argument that it has recently been damaged. A report just today shows our leading position in cell and gene therapies, in which ongoing UK trials represent 12% of global trials and have increased by over 45% in the last year alone. That is in the context of Brexit.
The Committee is right that this is a crucial sector to the delivery of healthcare treatments to patients across the UK and will continue to be so in future. We must get this right. I assure noble Lords that the quality and safety of patient care is paramount in  the department’s and our partners’ EU exit plans. This has been visible in our extensive efforts and preparations  to ensure that the supply of medicines and medical products into the UK remains uninterrupted following the UK’s departure from the EU. This led to the department’s multilayered approach to put in place  in the case of a no-deal exit from the EU. It was a substantial approach, which included work to procure additional freight capacity and to ensure buffer stocks and stockpiling; working closely with industry to improve trader readiness; and collectively helping to ensure visibility in the supply chain and, therefore, much more robustly ensuring continuity of supply processes.
While no-deal planning has been stood down, there is no question but that this work will stand us in good stead going forward, given the strategic importance of the supply of medicines and medical products in all scenarios—as the noble Lord, Lord Warner, pointed out. In fact, we are finding that the learning from this work is already helping us to better manage routine shortages, which are becoming increasingly common globally.
During our preparations for EU exit, we have at all times worked closely with our delivery partners. We are committed to doing so in future. Their support, expertise and hard work have been invaluable and will remain so as we enter the next stage of negotiations.
Turning to the amendment moved by the noble Baroness, I hope noble Lords will understand that we cannot accept this proposed new clause. The amendment was originally proposed in the other place and was not accepted there. I do not want to impute motive, but following debate, the sponsor in the other place chose not to move his version of the amendment to a vote there.
I wish to reassure the Committee on some of the questions raised, because it remains our objective to work closely with our EU friends, as we do at present, to ensure that patients continue to have access to safe and effective medicines and reap the rewards of our new relationship with the EU. Our overarching aim for medicines and medical devices regulations at the end of the implementation period is underpinned by the following commitments, which I have given before: patients should not be disadvantaged, which speaks to questions raised around rare diseases in particular; innovators should be able to get products to the UK market as quickly as possible; and the UK should continue to play a leading role in promoting the health of the public. We are in a better position than some of the countries—

Lord Davies of Stamford: All this is fine PR speak. All these principles sound splendid, but what are the Government actually going to do? The answer cannot be simply, “We will stay close to the European Medicines Agency.” Does that mean that we will leave that agency, not leave it or have some new, structured relationship with it?

Baroness Blackwood of North Oxford: As always, the noble Lord gets to the point. As my noble friend Lord Callanan said, the exact relationship with agencies will be subject to negotiation. I have set out the core principles which will be part of our negotiation, and I would also point out the key assets which we bring to  the table. The MHRA has real expertise in many areas —licensing of medicines, pharmacovigilance, clinical trials regulation—and already provides benefits to patients across the UK and the EU.
Regarding the points on clinical trials, raised by the noble Baroness, Lady Brinton, as part of EU exit negotiations, we are working to ensure that we will continue to have the best possible environment to support clinical trials. Our overall aim is to ensure not only that patients in the UK have access to the best and most innovative medicines but that we improve UK trials applications—so that they continue to be authorised by the MHRA and ethics committees, as they are now—and that the UK’s ability to participate in multinational trials will not change. We will also have a simpler way of allowing a single application to a single national decision in the UK, which we have been working on very hard.
The Government have set out the key principles of the UK’s negotiations with the EU in their manifesto, and as part of the political declaration. However, as has been said this evening in response to similar amendments, a statutory negotiating objective in primary legislation, as proposed in this amendment, is neither necessary nor the constitutional norm. We cannot accept a statutory reporting requirement either, but the Government will support this House in fulfilling its crucial role of scrutinising the actions of the UK Government during negotiations. The Prime Minister committed at Second Reading in the other place that Parliament will be kept fully informed of the progress of these negotiations. We will have many challenging and robust debates in this place as well, where your Lordships will hold us fully to account on the progress of those negotiations with the EU.
It is important to note that our approach to negotiations with the EU in this area is set out in the political declaration and the Government’s mandate, but this is only one part of our overall support for the life sciences sector. This commitment is also clearly demonstrated through the medicines and medical devices Bill, which was published in the Queen’s Speech and which we will have a lot of debate about in this place. The Bill is to ensure that the UK remains competitive and at the cutting edge of innovation, to the benefit of patients. I look forward to discussing those provisions with the House later this year. I hope that I have reassured the noble Baroness on the Government’s intentions, and on how we intend to take this forward, and on that basis I urge her to withdraw her amendment.

Baroness Brinton: Before the Minister sits down, may I tell her that I passed my question about reciprocal healthcare through to the Whips Office? I also asked in my speech whether the Healthcare (European Economic Area and Switzerland Arrangements) Act would remain in place unamended, which would reassure the EU Committee on its concerns at the fact that there is no mention of reciprocal health rights anywhere in the withdrawal agreement.

Baroness Blackwood of North Oxford: I apologise to the noble Baroness; I passed over that note in my response to the debate. Where the UK, a member state, an EEA or EFTA state or Switzerland is responsible for the healthcare of those in scope of the social security co-ordination part of the agreement, such individuals will be entitled to reciprocal healthcare cover from their competent country. This includes EHIC cover for people with full social security co-ordination rights under the agreements, and cover for people who have previously worked in the UK, another member state, an EEA or EFTA state or Switzerland before the end of the implementation period. Obviously, the specifics in future will be subject to the negotiations that will be forthcoming. I hope that that answers the noble Baroness’s question, and she will feel that she can withdraw her amendment.

Baroness Brinton: I am grateful to the Minister for her comments, and to other colleagues for their contributions. I am particularly grateful to the noble Lords, Lord Warner and Lord Davies, for their expertise, and especially for the intervention by the noble Lord, Lord Davies. The Minister is always courteous, and always gives us her best brief, but I am not reassured at all on the issue of the EMRN, partly because. although there was plenty of talk about trying to maintain the excellence in life sciences, there was no response to the question of how, with only 3% of the pharma market, we would be able to play the same role as we currently do in the EU, with 25%. There was also a complete failure to respond to the major concerns that everybody expressed about patients not being able to access drugs because we suddenly become a very minor player. On that basis, I will withdraw my amendment this evening, but I will consider whether to lay something for Report.
On the other matter, concerning reciprocal healthcare, again, I am not quite as positive as I think the Minister would like me to be. I remain concerned that the phrase “no-deal planning” was mentioned in the context of both parts of my speech. We on this side are concerned about the impact on UK citizens abroad, and on EU citizens here, of the loss of reciprocal healthcare arrangements. That is really worrying. But I am pleased to hear that there is some reliance, at least in the transition period, on the healthcare arrangements Act. I beg leave to withdraw the amendment.
Amendment 36 withdrawn.
House resumed.

Oaths and Affirmations

Baroness Hughes of Stretford made the solemn affirmation, and signed an undertaking to abide by the Code of Conduct.
House adjourned at 10.34 pm.